How Scalia predicted marriage equality 10 years ago

In light of today’s ruling, it’s important to note that Scalia himself predicted marriage equality all the way back in 2003 when they made the decision to make sodomy legal.

It should be noted that, now that California is included, full state and federal marriage equality is now in 13 states, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland, Washington, Rhode Island, Delaware, Minnesota, and California, and DC. These states and DC make up 30.5% of the US by population. Equality is coming.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.

[...] Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest”… what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Full horrifying opinion here, where he says he’s got nothing against the gays, he just thinks they’re going to hell.

Partial Victory in Prop 8 and DOMA – Early Analysis

marriage-equality

My predictions have turned out to be correct — gay marriage will now be federally recognized and legal in California, but not universally legalized.

DOMA IS UNCONSTITUTIONAL at least partly thanks to equal protection and not just states rights, that’s a big victory.  The opinion is here.  This is huge news for immigration and taxes and other federal jurisdiction issues.

“There is a “careful consideration” standard: In determining whether a law is motivated by improper animus or purpose, discriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles.”

Also this: “Bottom of 25-26: The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others. ”

This means that there’s some sort of heightened scrutiny now applied to gays as a class, though it does not appear to be full strict scrutiny.  This is good for any future gay marriage cases that are less complicated than Prop 8.

PROP 8 IS DISMISSED ON STANDING

The opinion is here.  What this basically means is that the lower court decision stands and Prop 8 is legalized in California, but not elsewhere.  The majority on this case is the weird combo of Roberts with Scalia, Ginsburg, Breyer, and Kagan.  I’m guessing this means that there was a lot of negotiation behind the scenes?

I believe that this mean Judge Vaughn Walker’s amazing opinion stands, but only as it applies to California.  It’s one of the most beautifully written things I’ve ever read, so I highly recommend it.

—-

I stayed up far too late last night watching the drama unfold in the Texas senate, where Wendy Davis and several other amazing people fought for women’s rights and the GOP there tried to cheat and swindle their way to a victory, only to be stopped by the raucous crowd.  It was truly amazing.

But it was back to watching a livefeed only a few hours later — this time SCOTUSBlog in hopes of a victory in DOMA and Prop 8.  Man the internet is necessary for news these days.

Infographic here helps explain possibilities.  This is my previous analysis of possibilities.

It has been a long journey with Prop 8 — over 5 years.  I wish it had been a more robust victory, and it’s a shame it happened on the same day as DOMA.  Still, the percentage of Americans who have access to gay marriage has just grown tremendously by the inclusion of California.  That can only be good news.

Marriage as protection against accidental pregnancies not a new argument

Greta has a post up about the “increasingly stupid” tactics used by supporters of DOMA and Prop 8 — but, for better or for worse, the argument that marriage is different for heterosexuals because of accidental pregnancy is not a new argument at all.  It is, in fact, the primary argument used by the proponents in the original Prop 8 case.

I know, because the first time I ever got published in a “big space” was on Salon, for writing about this argument.

And Greta’s not the only one pointing to this — Rachel Maddow’s blog did as well.  Not that it isn’t worth pointing out, it definitely is, but it is even more worth pointing out that in the two and a half years the lawyers have had since the closing arguments of Prop 8 they’ve been unable to come up with anything more compelling.  Ouch.

Here was Judge Walker’s response at the time:

And [marriage], as Mr. Olson described this morning, is a right which extends essentially to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support payments. There really is no limitation except, as Mr. Olson pointed out, a gender limitation.

Good news for us, bad for them.

What Prop 8 and DOMA rulings from SCOTUS could mean

Today SCOTUS agreed to hear two of the gay marriage cases that had been submitted to them, and they were the two big ones — Proposition 8, California’s anti-gay marriage constitutional amendment, and DOMA, a law passed by Congress to prevent the federal government from granting federal benefits to those who are gay married.

The gay marriage court cases are a bit complicated because they are dealing with a few different issues.  I’ve noticed a couple people on Facebook confused about what exactly the court will be ruling on and I thought I would explain it a bit.

It should be noted that I am not a lawyer nor have I been to law school, I’m just really interested in constitutional law and prop 8.  I covered it somewhat obsessively when I lived in California.  I haven’t covered DOMA as obsessively.

PROP 8

Officially known as: HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

In 2008, California legalized gay marriage through the court system and began performing gay marriages in the state.  That fall, a constitutional amendment saying marriage was one man and one woman was passed by the general population, making gay marriage illegal again.  Immediately, the state was sued by several gay couples who wanted to be able to get married.

The original ruling, by Judge Vaughn Walker decided that the amendment was unconstitutional for several reasons, some narrow and some quite broad.  He declared gay people to be a population that had been historically discriminated against and deserving of heightened scrutiny when laws applied to them.  What that means is that, if you make a law concerning creating a “separate but equal” status or targeting a minority group in particular, the government must have a compelling interest in doing so that cannot be served by other means.  In this case, civil unions were not the same as marriage — historically we know “separate but equal” is not equal — and any denial of gay marriage was unconstitutional.

The district court issued a much more narrow ruling, saying that none of the broader things mattered to the case, but the fact that California allowed some gay people to get married during a specific period of time and then REVOKED access to that, the very specific case of Prop 8 meant that only California’s anti-gay marriage amendment was unconstitutional, but other states with anti-gay marriage amendments would not be affected by the decision.

As the decision is written, if the Court simply upholds the district court’s decision, gay marriage will become legal in California and nowhere else.  Historically, the court has tended towards narrow decisions, but because of the amount of cases it has been given and the complications of some states allowing gay marriage and others not and the general wave of public opinion it is possible that SCOTUS will write a broader opinion that will legalize gay marriage in general.

The other complication is that there is a suit also to determine whether the people participating in the suit have the right to do so, and if they don’t it can mean that none of the courts had the right to make decisions.  Basically, the government in California was like “I want nothing to do with standing on the wrong side of history, I’m not defending the amendment, it’s toxic” so other people stepped in.  California ruled that this was fine, but it’s still being brought before SCOTUS.  According to the release, SCOTUS is also considering the problem of “standing” so there is also a chance that the case will be more or less thrown out.

THREE POSSIBILITIES

1. Gay marriage is made legal in all states (Broadest ruling)

2. Gay marriage is made legal in California (What I think will happen)

3. The entire case is thrown out and who knows what happens then, it’s complicated, probably gay marriage would be legalized in California but I’m not entirely sure

DOMA

Officially known as: UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

This case is a little more straightforward than Prop 8, if only because it’s not dealing with the minutiae of state law in addition to the question of gay rights.  DOMA states that people who are gay married do not have access to federal marriage benefits.  This has been ruled unconstitutional and, like in Judge Walker’s opinion, gay people have been declared a minority deserving of special consideration.

Like Prop 8, however, SCOTUS has to consider the issue of standing and could decide that the people participating in the suit don’t have the right to do so and could then throw the thing out entirely.

I think it most likely, however, that the court will be unable to find a constitutional justification for treating some marriages granted by states as federally acceptable while others are not.  I also think that, if California will have gay marriage, it will be incredibly difficult to justify not recognizing them federally, simply because California represents such a large portion of the US population.

DOMA is not my area of expertise, though, so I’m happy to hear other feedback.

DOMA ruled unconstitutional by CONSERVATIVE federal judge

A woman married to another woman owed almost $400,000 in estate taxes upon the death of her wife because DOMA prevents the federal recognition of her marriage, so she filed a case arguing that this was illegal discrimination.  This case was just reviewed in federal court by Chief Judge Dennis Jacobs, a super conservative judge.

Shockingly, not only did he (and the court) rule DOMA unconstitutional, his opinion includes language that states that LGBT should be treated with heightened scrutiny under the Constitution.  This basically means that the court recognizes that LGBT are a historically marginalized group who deserves special consideration when having laws directed at them.

In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Not only is DOMA unconstitutional, but ALL attempts to discriminate against gay people have to pass heightened scrutiny — something that law has, somewhat shockingly, completely failed to establish.

The hope now is that SCOTUS will adopt the same reasoning.  They should because it is completely reasonable, but that doesn’t always mean anything.  If SCOTUS did accept this reasoning and adopt it, it would functionally mean that all discrimination on the basis of orientation would be illegal.

The opinion is here: http://www.scribd.com/doc/110431508/12-2335-447

This is a big deal, or at least could be. Fingers crossed.

Prop 8 Update: on the SCOTUS conference docket

The first SCOTUS conference of the session is today and both DOMA (multiple cases) and Prop 8 are on the docket, meaning the Court will (probably) decide whether to take one or the other up in the next term. The votes of four justices are required for a case to be heard by the Court.

Although they are on the docket, it’s not uncommon for cases to be rescheduled, so it’s possible for the day to end without any information on whether the Supreme Court is planning on hearing the cases.

So what do we want?

Well, because of the extremely narrow ruling in the Prop 8 trial, it would probably be better for the court to decline to hear it. As I understand it, this would make gay marriage legal in California, effective immediately. It would also mean that the court would not be ruling for universal gay marriage, but they are somewhat unlikely to do that off of the Prop 8 decision — again, because of the narrow ruling in previous courts.

DOMA, on the other hand, looks like it could be fully destroyed by the court if it is picked up.

Gay marriage might resume in California very, very soon.  We shall see.

Why New York Matters

William Hasty III and Gregory Smith

I haven’t written about the legalization of gay marriage in New York.  It is a big deal, obviously, but it didn’t have any sort of direct impact on me or anyone I know.  Unlike Prop 8, which went down while I lived in California and which went on for a very long time, the decision in New York was quick and not where I lived.

But it doesn’t just matter in New York.  It matters everywhere — even in South Carolina.

Today in The State newspaper, South Carolina’s big paper, there was a marriage announcement for two men who met in South Carolina and married in New York.  On top of that, it’s an interracial gay couple.  As a friend on Facebook said, he’s sure the Baptist churches are blowing up The State’s phone lines.

The couple met in Columbia, S.C., in February 1984. Gregory and William were both commissioned officers in the U.S. Army. Best men for the wedding were the couple’s two sons, Dudley Smith Hasty and Baker Smith Hasty.

They have been together since before I was born.  Over 27 years together, 2 children, one working and one a homemaker, both veterans and unable to marry until this summer.  And still in a marriage that can’t be recognized federally or in the state that this announcement was made and where they met.

Anyway, congratulations to the Smith Hasty family and thank you for making SC a little bit more interesting and broadminded today!

Releasing the Prop 8 Videos

 

People in an open society do not demand infallibility in their institutions, but it is difficult for them to accept what they are prohibited from observing - Chief Justice Berger

Former Chief Judge Vaughn Walker, who presided over the Prop 8 trial, recently used some of the video that was taken during the case as part of a lecture.  The Proponents, aka supporters of Prop 8/opposers of gay marriage, immediately took great offense and sent what was essentially a cease and desist order that demanded the return of all the copies of the tapes, Walker's and anyone else who had them.

 
In response, Ted Olson and David Boies, the legal tour de force trying to lift the gay marriage ban, filed a request that the tapes be unsealed and released to the public.  After all, the trial is a matter of public record and the transcripts are freely available.
 
Originally, the trial was going to be broadcast live, but the Proponents felt like this might scare some of their witnesses away, and so they demanded that it not be broadcast.  Judge Walker taped it, but didn't release the tapes, to the great disappointment of the men and women across the country who wanted to see the greatest trial of the greatest civil rights battle of our time.

No one can really blame the Proponents for not wanting to have video footage of just how appallingly awful their defense of Prop 8 was.  They want to continue to play the victim here — they want to sell the idea that gay marriage is somehow a violation of religious liberty, rather than being completely the other way round.  The video of their disastrous performance would only reveal that they are driven solely by religion and bigotry — and that they aren't even capable of hiding that fact.

Some things that they don't want you to see on television, things that their own anti-equality witnesses did: a witness saying that DADT and DOMA were "Official Discrimination"; that same witness then saying Prop 8 was also discriminatory; Mr. Blankenhorn, their chief witness saying, "I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children"; Blankenhorn also saying, "We would be more American on the day we legalized gay marriage than the day before".

Well, I mean, no wonder, right?  But that's exactly why these things need to be released.  People need the opportunity to see how feeble the defense was and to really understand how motivated by religion the campaign against equality was.  Not everyone is as nerdy as me and reads trial transcripts because they find them so compelling — video is the medium of our lives, and well do the religious know that since it is the medium through which they sold their hate.

The vast majority of the money and on-the-ground support for the Prop 8 campaign came from the Mormon church, supplemented by the Catholic church.  This isn't even money from California, and it's certainly money that ought to take away their tax exempt status.  People need to be shown the kind of lies they were telling to get people to vote against marriage equality, the emotional manipulation about children and families, things so blatantly false they might be defended with the disclaimer: "not intended to be a factual statement."

Gay marriage doesn't destroy families, it doesn't destroy children, it really doesn't do much except make some people very happy and give them access to rights that the rest of us take for granted.  The trial provided an overwhelming amount of evidence that refusing marriage rights not only hurt gay people, but also hurt the thousands of children of LGBT parents.  It hurts these children irreparably, immeasurably, forever.  This wasn't in question, gay marriage opponents agreed.

These tapes shouldn't just be released, they should be broadcast on every news channel for weeks to expose just how rotten the argument is against gay marriage.  If you've ever questioned why church-state separation is so important, this is why.  If conservative Christians (and I include the LDS) hadn't funded the gay marriage ban, it wouldn't be in place, and even they couldn't create enough money to make credible witnesses or a real argument against gay marriage.  The monstrous unfairness of the church taking over, infiltrating, and outright buying the political process only to then lie to the public to get their way has got to stop.  Not only is it immoral, it is un-American.

Proponents motion for return of videos http://www.scribd.com/doc/52945974/CA9Doc-338
Vaughn Walker's response: http://www.scribd.com/doc/53041973/CA9Doc-339-Letter-from-Vaughn-R-Walker
Olson and Boies request for unsealing of videos: http://www.scribd.com/doc/52945974/CA9Doc-340
San Francisco's feisty response: http://www.scribd.com/doc/52945974/CA9Doc-341

 

In LGBT News

I'm so late on all of this, but I'm going to talk about it anyway.

1. The stay will not be lifted on performing gay marriages in California.  It's been so long since the argument before the ninth, that one might easily have forgotten that we were a hairsbreadth away from allowing gay marriages in California again, which would have been just as well, as there will be no marriages until the case is decided.  And probably no marriages until it's gone through the full judicial process, which may be years from now.  Justice is by no means swift in this country.

This is not a surprise, though.  I would have been shocked if the courts had decided to let marriages go ahead.  Despite the fact that there is no harm caused by allowing gay marriage, to admit so would be to tip their hand and to call into question their judicial ruling, so the Ninth can't really get away with supporting a lift of the stay.

2. In super awesome OMG yes news!  As you may know, mutli-national gay couples who are married and have their marriages recognized elsewhere, cannot have their marriages recognized in the US thanks to DOMA.  This means that people can be married but deported, very much unlike the way heterosexual married couples are treated.  Deportations have been halted thanks to the questions about the legality of DOMA.

Confirmation that this policy is now in place nationally is cause for celebration. In many ways this is vindication of a two-decade long struggle by thousands of binational couples, advocates and attorneys. But the fight is not over yet. Many couples, after consulting with experienced immigration attorneys, may decide that this is the proper time to file a green card case. However, DOMA is still the final obstacle for attaining a green card; unless it is repealed or struck down, filing any case with immigration is not without risk. – Lavi Soloway

Why I hate you if you voted Yes on 8

I’ll sum this up for you.  Two men, Harold and Clay, lived together for 20 years in Sonoma County, CA, they took extreme care to make sure they had legal protections in place so that they could take care of one another.  Instead, when Harold fell, the county and healthcare workers ignored all the legal paperwork and refused to let Clay see him, refused to let Clay dictate the medical treatment, they forcibly removed Clay from their home and put him in a separate nursing home from Harold, against his will, and finally they took all of their belongings from that home and auctioned them off.  Harold died alone three months later.  Clay was finally able to get an attorney to get him out of the nursing home, but his home and all of his belongings were gone.

All of this in a county in California that voted 68% against Prop 8 — this is a place with support for marriage equality that still did this to a gay couple.  People don’t understand that this isn’t just a fight for a word, this is a fight for adults wanting to be treated as adults, capable of choosing who is important to them and who has a say in their lives.  This is about incredibly basic human decency that gay people are denied.  People think, oh stuff like that doesn’t happen anymore.

Yes, it does.  And it’s inhumane and disgusting and cruel.  And when you don’t support gay marriage, what you’re saying is “I want this to happen to people.  I don’t think gay people deserve to be treated like humans, they aren’t human as far as I’m concerned.  It’s not enough for them to live their lives away from me, I want them to suffer.” Every single organization, every single politician, every single person who supports the ban on gay marriage is tacitly endorsing this abuse.

http://www.nclrights.org/site/PageServer?pagename=issue_caseDocket_Greene_v_County_of_Sonoma_et_al

Clay and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place—wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health.

One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.

Ignoring Clay’s significant role in Harold’s life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold’s “roommate.” The court denied their efforts, but did grant the county limited access to one of Harold’s bank accounts to pay for his care.

What happened next is even more chilling: without authority, without determining the value of Clay and Harold’s possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold’s lease and surrendered the home they had shared for many years to the landlord.

Three months after he was hospitalized, Harold died in the nursing home. Because of the county’s actions, Clay missed the final months he should have had with his partner of 20 years. Compounding this tragedy, Clay has literally nothing left of the home he had shared with Harold or the life he was living up until the day that Harold fell, because he has been unable to recover any of his property. The only memento Clay has is a photo album that Harold painstakingly put together for Clay during the last three months of his life.

With the help of a dedicated and persistent court-appointed attorney, Anne Dennis of Santa Rosa, Clay was finally released from the nursing home. Ms. Dennis, along with Stephen O’Neill and Margaret Flynn of Tarkington, O’Neill, Barrack & Chong, now represent Clay in a lawsuit against the county, the auction company, and the nursing home, with technical assistance from NCLR. A trial date has been set for July 16, 2010 in the Superior Court for the County of Sonoma.