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

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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.

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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.

Prop 8 Media Appearances Round Up (UPDATED)

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Two hours of sleep in freezing rain, mixed with joy of being the last one in

NEW: Me on Politico video where you can see just how terrible the conditions were.

NEW: Same photo in galleries at the LA Times and Politico.  You can see how creepy the statue is in the LA Times version.

Me on the NYTimes video talking about waiting to get in.

Me talking to CBS Los Angeles about the line.

Me on WUSA9 about people who are paid to hold lines for others.

Me on Red Alert Politics about hoping to get in.

Talk Radio News Service decides my name is Ashley Madison when interviewing me after the case lets out.

I also gave an interview for WCIV in Charleston, SC, but I don’t have anything for that.

High school friend Crista Cuccaro on the news for WSOCTV

Neverending thanks to Emmett for all the supplies, dry clothes, and many pictures.

Prop 8 at scotus , in line

It’s cold and snowing. I’m 51st in line. Interesting people, mostly pro equality.

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Chilling under my tarp

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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.

Robert Bork, scariest almost Supreme Court Justice, dead at 85

bork-timeRobert Bork, the intensely conservative failed Supreme Court nominee from 1987, has passed away after a heart ailment. Bork was a sort of bogeyman from the right, destroyed by Joe Biden in the senate hearings for his nomination for being absolutely insane and who Mitt Romney made head of his judiciary appointments in an attempt to gain conservative credibility.

Thanks to the failure of the Bork nomination, we got Kennedy, who will occasionally vote in favor of things like equality and gay rights.  He is, in fact, our best hope that the court will overturn DOMA and Prop 8.  So, the borking of Robert Bork was quite fateful.

From my speech about the war on women earlier this year:

The Supreme Court has four justices over 70 and Mitt Romney’s chair of judiciary appointments is Robert Bork.

Robert Bork, the man Reagan failed to get on the Supreme Court 15 years ago.  Robert Bork who doesn’t believe in the right to contraception, much less abortion, who thinks discriminating against women is QUOTE “not possible”, who opposed the Civil Rights Act of 1964.  I know who I don’t want putting people on our already too anti-woman court.

The thing about Bork, though, is that he was very smart and very funny. I actually have a lot of respect for his intellect, but it’s hard to respect someone who fought for Nixon during Watergate and would repeal equal rights laws if he had the opportunity — and he very nearly did have the opportunity.

More here: http://www.startribune.com/nation/184098181.html?refer=y

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.

Gay Marriage: Blankenhorn’s Conversion

It is human nature to love the story of a convert, but it is even better when the convert is someone who has been fighting against your cause for a long time.  David Blankenhorn was the key witness for the Prop 8 proponents (anti-marriage) and is generally thought to have made a bit of a shambles with the argument — mostly because there was no legitimate argument to be made.  He is now supporting gay marriage.

Blankenhorn’s primary argument up to the conversion had been that marriage is about having children and that same-sex marriage would undermine that purpose.  Despite his longtime support for so-called traditional marriage, he said the following in his testimony, in response to aggressive questioning:

I believe that adoption of same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

We would be more American on the day we legalized gay marriage than the day before.

With quotes like these in his testimony it is perhaps unsurprising that the lead witness against Californian’s right to gay marriage is now identifying as a gay marriage supporter.  Blankenhorn’s position has always been more nuanced and humanist than the anti-gay arguments generally given against same-sex marriage and it is refreshing to see him turn that nuanced acumen to a different conclusion.  I happen to massively disagree with his conclusions as to the worth, goals, and historical understanding of marriage, but it is clear he thinks that human dignity and rights are an important part of saving the institution he cares about and the only way to do that is to stop making the defining feature of marriage the fact that it’s for straights only.

His essay in the New York Times is heartening and a reminder that being out and being vocal about your rights does matter and changes the world, even if it is just one person at a time.

I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.