What's the next step?

The Supreme Court's ruling on California's Proposion 8 (Hollingsworth v. Perry) puts California among the other 12 states and District of Columbis where same-sex marriage is legal. And the other ruling on the subject (United States v. Windsor) makes it clear that anyone that the States consider married, the Federal Government must recognize as married too. Two very sensible rulings, which it pains me to see so-called “conservatives” attacking. Most of the time, conservatives believe that the Government should protect people's rights. They should realize that both these rulings are in that spirit. However, a lot of “conservatives” seem to want to have the Government impose their moral standards on everyone, even though the others may have a different view of what is, and what is not, moral. These “conservatives” I can only despise. They would, I'm certain, feel differently if, say, an Islamic Government imposed its rules, as the Taliban did, on them.

So I'm happy with these rulings, but I wonder what is next. I don't think the nation is ready for the equivalent to Loving v. Virginia, overturning laws in many States. However, I can see a logical next step. A person who gets a driver's license in one State can drive in all the other 49, even if, for some reason, they would be ineligible in the State where they are currently located. This is because of Article IV of the Constitution. It requires the States to give “full faith and credit” to the acts of other States. A case might be made that a Virginia same-sex couple, going to Massachusetts to get married without establishing Massachusetts residency, is stretching the law, and Virginia can legitimately refuse to accept this marriage. But it seems to me that a same-sex couple who marry in Massachusetts, being resident there at the time, have a legitimate marriage that must be recognized in the other 49 States, even if, say, Virginia will not allow such a marriage to be performed there.

So I think this is the next step. Forcing all States, under Article IV, to recognize legitimate marriages performed in other States, at least between residents of the State where the ceremony was held, is going to cause great consternation in States like Virginia, but I think this will need to be done before those States are forced to allow the marriages to be performed there. At least, that's how it seems to me.

The Supreme Court's two gay marriage decisions

For once, the Court's decisions went just about as I would have had it. The only place I was not quite right was that the overrule of California Proposition 8 was on the grounds of “lack of standing,” rather than appealing to an earlier decision in a Colorado case that a right, once given, could not be taken away. But the practical effect is the same; the lower court's decision was upheld, and that court used the argument I would have cited.

The DOMA decision got it exactly right. The states have always said who had a right to marry, and if the Federal government restricts that right, they are impairing the right to equal protection. As Justice Kennedy wrote in his opinion, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.” Those who talk of the “traditional” definition of marriage have a lot of things wrong; traditionally marriage has been regulated by the states, not the Federal government, and over the years the nature of marriage has changed — in the nineteenth century it made a wife the property of her husband, for one thing. So appealing to “tradition” is nonsense.

A lull in the posting rate

I've not been posting much lately — only once a week or less often. And I notice that most of my favorite blogs, like Dennis Sanders' “Big Tent Revue” and Tom Bowler's “Libertarian Leanings,” have also slacked off. I wonder if this is because Barack Obama's Presidency is going to last till 2017, and nothing we say can change that? (And of course, even Congressional elections are 1½ years away.)

Next month, the Supreme Court will probably issue its decisions on Hollingsworth v. Perry (the California Prop. 8 case) and United States v. Windsor (the case challenging the so-called “Defense of Marriage Act”). I will certainly post comments on these decisions once we know what they are. But until then it is mere speculation. I know how I would rule. On Windsor, it is clear to me that DOMA is unconstitutional, because it conflicts with the Tenth Amendment-based right of States to define “marriage.” On Hollingsworth, my feeling is more nuanced. Because of that Tenth Amendment argument, it is not appropriate to declare same-sex marriage legal everywhere in the 50 States. Appeal to the precedent of Loving v. Virginia is attractive, and probably if there were more than 11 states with same-sex marriage on the books, would make sense. But clearly there is not a nationwide consensus on this issue. I think, if I were a Supreme Court Justice, however, the precedent I would follow is Romer v. Evans. Basically, to take away rights that people already have is unconstitutional, and this is what Prop. 8 did. And on this basis, the Court would, in my opinion, be right to invalidate Prop. 8, while not forcing those states without laws authorizing same-sex marriage on the books to institute it.

But this is my position. i cannot get inside the heads of the nine Supreme Court justices. So I cannot comment on their decision until they issue it, probably next month.

More progress on the "marriage equality" front

In the last few days, Rhode Island and Delaware have passed marriage equality bills. Of course, this makes it even more the case that geography is the big divide. Nearly all the states north and east of the Potomac now have marriage equality (calling the District of Columbia a “state,” which for this purpose it in effect is). Just south of the Potomac you have states like Virginia and North Carolina, which have shown open hostility to the concept. And heading westward, most states haven't really done anything one way or the other. (Iowa has, and Illinois is probably about to, institute same-sex marriage. Colorado just started civil unions, which ultimately seems to lead to marriage, as it did in the state that invented the concept of civil union, Vermont. And the big one, California, is the subject of the big Hollingsworth v. Perry case, which the Supreme Court will rule on, probably in a month or so, so supporters of marriage equality are awaiting this decision with bated breath. (Of course, the Court might rule on Hollingsworth v. Perry in a way that brings about marriage equality nationwide. I doubt that they will. I don't think it's time for a ruling like Loving v. Virginia involving sex instead of race, yet.)

Reports that seem to come from the Court

What I see in the reports on the two days of hearings seems to confirm what I've said about DOMA — there's a strong states' rights argument that DOMA is unconstitutional. The Prop. 8 news seems to be a bit less clear, but it looks as though there's a good chance that the Court will rule that the anti-gay side has no standing, or that the court should not have granted certiorari, and in that case the Ninth Circuit opinion will stand: Prop. 8 in California is unconstitutional, but the status quo will continue in at least most of the 49 other states (legal where it is, illegal where it's not currently legal). This will mean the pro-marriage-equality side will have to keep working where they haven't won, but there is a precedent that will say that wherever gay marriage has been approved, that action can't be reversed. Inexorably, gay marriage will become legal in more and more states.

If all this comes to pass, it's good for advocates of equality. Not perfect, but good.

The two gay marriage cases

Yesterday and today, the Supreme Court has been hearing arguments on two gay-marriage cases, two which in fact are quite different but both bearing on the future of gay marriage. Given that I was certain that last year the Court would find “Obamacare” unconstitutional, I have no credentials as a Court decision predictor, and so I will not try on these, but there are a number of points to be made.

If the court wanted to take a strict “states' rights” position, it would rule that California's Proposition 8 was properly enacted, ending gay marriage in California, but invalidate the “Defense of Marriage Act” as an infringement on the States' rught to define marriage — a Tenth Amendment based decision. So gay-marriage people would have, then, a split decision.

It is, of course, possible that the Court would follow the precedent of Loving v. Virginia, as Ted Olson would suggest, and grant gay marriage rights nationwide as a Fourteenth Amendment (equal protection) right. I really don't expect this, but it would be a great day fopr gay couples if the Court did so

What could more likely happen, and was hinted at by at least two Justices, is that Hollingsworth v. Perry (originally called Perry v. Schwartzenegger and then Perry v. Brown: these changes can be quite confusing!) will not be decided at all; the Court will rule that the supporters of Prop. 8 have no standing to sue, gay marriages will resume in California as a result of a lower court decision, but the other 49 states will be unaffected.

Of course, we will not find out the decision for several months. The Court will do as it did in the Obamacare case, issuing its opinion in June rather than right away. So we are waiting while various analysts examine the questions the Justices asked to try to discern their thought processes.

The 9th Circuit Court's ruling on gay marriage

The 9th Circuit Court of Appeals has issued an opinion (Perry v. Brown) on California's Prop. 8 anti-gay-marriage vote. In keeping with a Supreme Court doctrine that judicial rulings should be as narrow as possible, covering only what is absolutely necessary, the ruling didn't try to establish a Constitutional right to marriage — which supporters of gay marriage would have liked to see — but merely stated that Prop. 8 was invalid simply because it took away rights that had already been possessed by gay people (as a result of a California court decision). And they referred to another decision, Romer v. Evans, by the Supreme Court, that prevented Coloradans from voiding already-passed anti-discrimination laws affecting gay people. And therefore it applied to California, but no other state.

The Religious Right will, of course, appeal, but even assuming they lose and the 9th Circuit Court's decision stands, nobody outside California can gain much from it. But it is an incremental win for equality. And that's a plus.

One thing is clear: By citing Romer v. Evans, the Court has made a clear appeal for the support of Supreme Court Justice Anthony Kennedy. He is often the deciding Justice in 5-4 decisions, and he wrote the opinion in Romer v. Evans.

More on Perry v. Schwarzenegger

I keep seeing arguments against Judge Vaughn Walker's opinion in the case of Perry v. Schwarzenegger, the Federal court case contesting California's Proposition 8. As I expected, the fact that Judge Walker is gay figures in a lot of the arguments, and probably he should have recused himself, but it is still a good decision which I hope will prevail when it gets to the Supreme Court.

The usual argument against Judge Walker's decision, though, has to do with judicial activism; the people voted to pass Prop. 8, the people should be sovereign, thus Prop. 8 should be allowed to let stand. But suppose this was a case involving segregation in Mississippi in the 1950s. Does anyone believe that the Mississippi voters would not have voted, by a much greater majority than the California voters approved Prop. 8, to retain segregation? And does anyone believe that that vote should have been allowed to stand if it had been taken? Well, where is the difference? There are racists who even today would like to see segregation, but fortunately the courts have ruled decisively in ways that make it impossible for them to get their way. And there are homophobic bigots who so far have succeeded in preventing gay people from having the same rights as straights in most states and in Federal law, and it seems that only court action will make it impossible for them to continue to get their way. I suppose this is judicial activism, but it is the kind of activism that brought about racial equality in the past, and hopefully will bring about equality between sexual orientation categories in the future. This kind of judicial activism we need.

What will the Supreme Court do?

It looks as though there are going to be some interesting issues before the Supreme Court in the next year or so. There are the three gay marriage cases (Perry v. Schwarzenegger, challenging California's Prop. 8, and Gil v. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, two Massachusetts challenges of the federal Defense of Marriage Act), Ken Cuccinelli (Virginia attorney general)'s challenge to the individual mandate in the Obama health care law, and the Obama administration's challenge to the Arizona anti-illegal-immigration law. Quite a bunch of controversial cases, and it will be interesting to see what the Supreme Court does with them!

It is hard to predict. The California gay msrriage case, for example, had a conservative lawyer on the team representing the pro-gay-rights side. And there are all sorts of issues involved in all these cases, many of which have not been before the Supreme Court before. And of course, the Court has some new justices: Sonia Sotomayor and Elena Kagan, without much of a judicial history. We just have to sit and wait.

I don't understand why they fight it

Why do the homophobes fight gay marriage? That is one point I can't figure out.


The only argument they can raise is that it's against God's will. Some readings of the Bible certainly make that case. However, the laws of the U. S. are not supposed to discriminate between different religions, and it is clear that other readings of the Bible disagree, as there are churches that are willing to perform gay marriages. So that argument loses.


Another argument is that "marriage always has been between a man and a woman." That one has even less chance of being upheld in a court of law. The fact is that "just because it's always been that way" has never been a valid argument in court. Traditionally, women could not vote, own property, etc. Unlil Loving v. Virginia, miscegenation laws upheld the "traditional" view that marriage has always been between two white people. And there are many other "traditions" that restricted people's rights that have been thrown out in court.


Really, the only argument there is against gay marriage is in fact, "I don't like it." And the last time that won a court case was ... never? Actually, the more they fight the concept of gay marriage, the more they advance it. If the homophobes had not bothered to fight it, the gay rights advocates would have to fight in fifty State legislatures, and it would take many years to happen — in some states the gay rights advocates would never get a legislative majority. But because they pushed Proposition 8 in California, there was Perry v. Schwarzenegger (which, ironically, put Gov. Arnold Schwarzenegger in the position of nominally being the one being sued, even though he did not agree with the referendum result!). (See my August 7 post.) The result of this may end up requiring States to implement gay marriage! The case will go to the Supreme Court, since the homophobes will not take this judge's opinion lying down, and the Court will find for the gay couples. (There are 4 liberals and 4 conservatives. Justice Kennedy, the ninth, has in recent years been sympathetic to gay rights. Even if all the conservatives side with the homophobes, which is not guaranteed — after all, one of the lawyers for the gay couples is a prominent conservative, so "conservatives" are not always anti-gay — there are probably five votes to extend Loving v. Virginia to gay marriage.)


I have not, in the past, supported gay marriage in those places where I felt that the gay couples were more likely to succeed by taking the "half a loaf" of civil unions. I have always felt that it was more important to have the rights of a married couple, regardless of what the law called it. But I have also seen no "other side of the coin" — there is really no reason to avoid gay marriage except that using the word "marriage" angers some people — so wherever (whether by legislative or judicial action) gay people get the right to marry, I will view it with favor. It is basically a case of freedom, and I agree with the position (expressed by the Modern Whig Party, which I recently mentioned in this blog) that the government should not be in the business of legislating morality.

On the case of Perry v. Schwarzenegger

As this article points out, today a possibly groundbreaking "gay rights" case starts its path through the court systems: Perry v. Schwarzenegger. If it succeeds, it will lead to as fundamental a change in the legal treatment of sexual orientation as Brown v. Board of Education did to the legal treatment of race. And while I hope it succeeds, I have to worry that it might fail. Because failure might be equivalent to Plessy v. Ferguson, setting the cause back for many years.

Those who have been reading this blog know that I feel that the incremental approach, starting with gaining marriage rights, without perhaps the name, (i. e. the "civil union" approach) and then getting marriage later on after some of the resistance has been dulled by experience — the approach which has worked in Vermont — has more chance of success. I see nothing wrong with the idea of gay marriage, but why not go for the thing you really want — rights — if you can get more support for that than you can get for the word "marriage" itself?

One thing that gives me some hope is that the legal team challenging California's Proposition 8 is led by two lawyers who represent opposite ends of the political spectrum, Theodore Olson and David Boies (the two lawyers for opposite sides in Bush v. Gore.) It has always saddened me to see that the same political Right that generally acts in a "pro-freedom" direction on economic issues often takes the side of bigotry and intolerance on social issues. But here it's different.

If the pro-rights side wins here, it will make me happy. But I'm just afraid it's an awfully big "if."