Sunday, January 25, 2015

U.S. Supreme Court Will Strike Bans on Same-Sex Marriage

I think “Marriage Equality” will be law throughout the U.S. later this year.

The U.S. Supreme Court has been heading that way since 2003, when it prohibited a Texas law against consensual gay sex in Lawrence v. Texas. (Justice Antonin Scalia wrote in dissent that after Lawrence, there was no basis for denying same-sex couples the right to marry.) In 2013 it tossed out federal law defining marriage as between a man and a woman. In each opinion Justice Anthony Kennedy, writing for the Court, wrote of gay people's dignity and equality.

Then why hasn't the Court already decided the marriage issue?

Time has allowed arguments for both sides to develop in dozens of lower-court cases, and the years have seen a big change in public opinion.

The arguments for an important state interest in prohibiting same-sex marriage have proven weak. Some are fatuous (Lawyer: “Judge, marriage is only for procreation!” Judge: “Nonsense! I marry septuagenarians all the time, and I'm pretty sure producing babies isn't part of their plan.”). Other arguments are faith-based, and not legal arguments. The “oh, this is so wrong!” sentiment reduces finally to religious preference or “tradition.”

In more than 40 cases around the country, federal and state judges, of varying political views, have almost unanimously held against same-sex marriage bans.

In 2003, no state permitted same-sex marriage. In March 2013, when the Court decided Defense of Marriage, nine states permitted it, and the Court (states-rights oriented, except in Bush v. Gore) was reluctant to tell the other states what to do. (New Mexico was the 17th, in 2013.) Now, marriage equality is law in 36 states; and public opinion has swung to a strong majority favoring marriage equality.

Further, the recent Sixth Circuit decision favoring letting states decide created a split in the circuits, thus providing a specific reason for the Court to opine and clarify matters.

The Court will hear arguments in April on two issues: does the Constitutional mandate of equal protection, applied to states through the 14th Amendment, prohibit states from enacting laws discriminating between man-woman couples and other couples in granting marriage licenses? And does a state that doesn't allow two men or two women to marry nevertheless have a duty to honor marriages granted in other states?

Considering the second question first provides a possible roadmap.

The Constitution specifically says states must give “full faith and credit” to the laws of other states. That's clear and unambiguous.

If New Mexico law has made Tom and Harry a married couple, Texas should recognize them as such.

Arguably, the individual right to travel from state to state is also at issue. Suppose Tom and Harry are happily married under their state's law. They visit a state that doesn't recognize their marriage. If Harry has a serious illness or accident, the hospital could keep Tom from visiting Harry in the ICU, since he wouldn't be family under its law. That's a serious restriction on right to travel. It's extremely unfair, too.

I think the Court will hold that states must recognize marriages performed in sister states.

If states must give full faith and credit to other states' marriages, that negates a popular (but weak) argument against legalizing such marriages. Opponents argue that gay couples somehow undermine family values, or that seeing same-sex married couples will give children the idea that maybe gay families are all right. But if same-sex couples are moving in from other states, a state can't prevent the “problem” by refusing to authorize marriages.

Fact is, as people see gay families around, behaving quite like other families, they'll eventually get used to it – and why not?
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, __ January.]

[I hope it's clear that my reference to the "weakness" of the legal arguments against same-sex marriage isn't just my opinion but also relies on the fact that those arguments have failed miserably in almost all the cases where they've been advanced.   I do find them weak!  But so do judges and justices from around the country and from a variety of political backgrounds.]
[The point I make in the column that I haven't read elsewhere -- and which may be dead wrong -- is that merely requiring states to honor sister states' marriages of same-sex couples will make it harder for the Court to uphold bans by such a state on such marriages within the state's borders.  Why? First of all, it's confusing and just plain silly to have gay married couples who moved from other states walking around while other gay couples can't get married without taking a vacation in New Mexico or somewhere.  Second, as stated, to the extent that opponents of same-sex marriages think that having gay couples around causes society some damage, then (as stated in the column) the ban could no longer accomplish their goal anyway, but would just pointlessly interfere with lives of gay couples.  Since such cases involve balancing the imposition on the individuals with the significance of the state's interest in discriminating against them, recognizing marriages from other states would ultimately undermine the purported state interest as some litigants have stated it.]
[One of the arguments in the California case was that letting gays marry would somehow tarnish the marriages of heterosexuals.  Nonsense!  First of all, if someone's marriage is so weak that it can be undermined or tarnished by what some pair of strangers may be doing in their marriage, then someone's marriage ain't much to start with.  Quite to the contrary, Dael and I, as we considered marrying, felt appalled by the unfairness of denying marriage to a gay couple as full of love for each other as we were, and as committed to each other.  If anything, our knowledge of that unfairness would tend to weaken our enjoyment of marriage, as watching a row of hungry kids would weaken my enjoyment of an ice-cream sundae.  I wrote the Plaintiffs' lawyers and offered to testify to that effect, if needed.]

[A story in today's paper reminds me of another bit of evidence that the time has come, and that the Court will recognize that.  The story described a few fringe legislators in various states, including Georgia and Texas, trying to adopt any-gay legislation before the Court decides the issue.  No suprise there.    But the story goes on to note that there's no apparent chance such laws will pass, Republican leadership in those states hasn't advocated such laws, and that there's well-funded opposition from business groups.  The most relevant point is that neither mainstream Republican legislators nor businesses want to see any such thing.  And the relevance isn't that the legislators or businesses can dictate to the Court, but that they reflect the current attitude in the population from which most of these justices hailed: white middle or upper-middle class businessfolk, lawyers, and politicians.]

[For an odd sort of perspective, the New Yorker Magazine, in the issue that arrived the day I wrote this column, contains an interesting incident.  On August 29, 1867, a 42-year-old German lawer, Karl Heinrich Ulrichs, spoke before a national congress of jurists.  He was terrified ahead of time about what he wasy going to say, but he said it: he urged repeal of laws forbidding sex between men.  He told the 500 distinguished jurists in the audience that existing laws persecuted people (including himself) with a "sexual nature opposed to common custom"  for impulses that "nature, mysteriously governing and creating, had implanted in them."  Thus he was making, perhaps for the first time in modern history, the argument that gays were gay by nature, not primarily by choice.  The place went crazy.  Ulrichs had to stop speaking, and eventually went into exile, but his ideas had some influence.  Others picked up the idea and acted on it.  As happened a hundred years later in the U.S., there were gay clubs, a gay magazine, criticism of the negative portrayal of homosexuality in the general culture, and vigorous discussions of what was later called "outing."  (The term "homosexuality" was coined in 1869 by a pro-gay-rights writer.) In 1880's Berlin, a police commissioner gave up prosecuting gay bars and adopted what the New Yorker calls "a policy of bemused tolerance" and even took people on tours.]

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