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Jul 11 2013

First ID, Now SSM

- guest-blogged by W. Kevin Vicklund

Judge John E. Jones III, made famous for his 2005 decision striking down Intelligent Design in the Dover, PA school district, is making the headlines again.  He has been assigned a case, brought by ten couples and a widow, challenging Pennsylvania’s law banning marriage equality.  The case is Whitewood v. Corbett.  The plaintiffs are being represented by the ACLU.  I wonder if they’re bringing the band back together?

In related news, opening arguments for DeBoer v. Snyder are scheduled for October 1st.  This is the Michigan trial that was originally challenging Michigan’s “second parent adoption” policy banning all but married couples from both adopting a child.  The judge convinced the plaintiffs to amend their complaint to challenge the constitutionality of the state amendment banning same-sex marriage.

There are many more cases in the pipelines.  This fall and winter should be full of cases to analyze and dissect.  And I believe there will be a lot to celebrate when the dust starts to settle.

13 comments

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  1. 1
  2. 2
    Spanish Inquisitor

    Oh, good. If they actually try it, I can go down and watch some of it….

  3. 3
    slc1

    Judge Jones gave a number of lectures on how district judges and circuit court appellant judges are supposed to use precedent. Since the Supreme Court punted on the Prop. 9 case, I wonder what the precedent is.

  4. 4
    slc1

    Re #3

    Ah shit, it’s Prop 8.

  5. 5
    d.c.wilson

    Now I remember why I voted for Kathy Kane!

  6. 6
    John Pieret

    Judge Jones gave a number of lectures on how district judges and circuit court appellant judges are supposed to use precedent. Since the Supreme Court punted on the Prop. [8] case, I wonder what the precedent is.

    Perhaps more important is the decision on the DOMA case, where Justice Kennedy ruled on the basis of Federalism but, nonetheless, invoked Equal Protection as a reason why the Federal government couldn’t treat people legally married under state law differently just because of their gender.

    Justice Scalia saw the writing on the wall when he wrote in his dissent:

    As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

    By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. … The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there.

  7. 7
    jayarrrr

    Oh, just wait till Indiana amends their constitution next year. I hope the ACLU eats Governor Dense for lunch…

  8. 8
    skinnercitycyclist

    Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. …

    So, is Scalia saying there need be no “legitimate purpose” for a law? Lawmakers can willy-nilly pass laws restricting all kinds of rights that are not explicitly, word-for-word in the constitution? I wonder what Scalia thinks the definition of “substantive due process” is? And whatever happened to the “limited constitution’ these people are so fond of touting?

  9. 9
    slc1

    Re John Pieret @ #6

    A minority opinion by one justice hardly counts as a precedent. The fact is that the DOMA decision could be construed as saying that there is no constitutional prohibition on recognizing same sex marriage but it did not rule that there is a constitutional requirement that a state must do so.

    The only precedent is Judge Walker’s ruling in the California District Court, which the Supreme Court did not overturn in their Prop. 8 ruling (they also didn’t affirm it). If Jones want’s to, he could rule as Walker did, citing the latter as the only standing precedent and buck it it up to the SCOTUS. Or he could reject the Walker ruling, thus, again, bucking it up to the SCOTUS.

  10. 10
    sillose

    does precedent only have to come from the gay marriage thing? it could come from other places, and might be stronger if it did. precedent related to interracial marriage might be exceedingly helpful. then again; IANAL

  11. 11
    slc1

    Re sillose @ #10

    I don’t want to play lawyer here but the interracial marriage decision might not be considered on all fours relative to same sex marriage issue.

  12. 12
    John Pieret

    slc1

    A minority opinion by one justice hardly counts as a precedent.

    Um … Scalia was complaining about what the majority opinion entailed. Despite my loathing for Sclaia’s judicial philosophy, he’s bright enough to recognize what the majority opinion actually did.

    sillose:

    precedent related to interracial marriage might be exceedingly helpful

    I was only saying that, of the two recent cases, the DOMA one would be more useful in a broader challenge to anti-SSM laws. I would certainly expect any brief on the side of marriage equality to prominantly feature Loving v. Virginia. And I think Loving, where the law was defended as being based on God’s word and the traditional definition of marriage, would be highly relevant. The DOMA case recognized that the basis for treating the marriages of gays differently that those of straights was social animus, a suspect basis for a law under the due process and equal protection clauses.

  13. 13
    Rip Steakface

    “We’re getting the band back together!”

    “We’re on a mission from Gad.”

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