The bigots will stop at nothing (updated)

By Michael J.W. Stickings 

UPDATE: Fail.

**********

From the L.A. Times:

ProtectMarriage, the sponsors of Proposition 8, filed an emergency petition to the U.S. Supreme Court on Saturday to stop same-sex marriages from continuing in California.

The petition says the decision by the U.S. 9th Circuit Court of Appeals to permit weddings starting Friday afternoon was "premature."

It's Justice Kennedy, who of course wrote the majority opinion that struck down the Defense of Marriage Act, who will rule on this petition, as he is responsible for the 9th Circuit Court. Tom Goldstein of SCOTUSblog explains:

The application argues that the Supreme Court’s ruling in the Proposition 8 case is not yet "final," so the stay must remain in place. The Supreme Court ordinarily does not issue its formally binding ruling – known as the "judgment" – in a case from a federal court of appeals until 25 days after it releases its "opinion." Because the Court issued its opinion in the Proposition 8 case on June 26, it would by default not issue the judgment until Monday, July 22. (The 25th day is July 21, a Sunday.) The principal point of that delay is to permit the losing party to prepare and submit a petition for rehearing to the Justices, though such petitions are as a practical matter never granted.

So basically, the bigots behind Prop 8 want more time to prepare to continue to fight for their bigotry, and to "delay the inevitable," as Goldstein writes. In any event, Goldstein thinks this emergency petition will "likely" fail, for a variety of pretty solid reasons.

What's clear, though, is that the bigots are desperate, and will stop at nothing. So extreme is their bigotry.

One of the stupidest things ever written about gay marriage, by Megan McArdle

By Michael J.W. Stickings

There's a lot to read about the Prop 8 oral argument before the Supreme Court, and this includes a lot of the usual bigotry from the right, but I have a candidate for the stupidest article yet to appear on the matter and it comes from the remarkably stupid Megan McArdle.

In "Why Gay Marriage Will Win, and Sexual Freedom Will Lose" -- yes, that's the real title -- McArdle argues, or whatever the verb is for insane verbal diahrrea, that what we're seeing in the inevitable legal triumph of same-sex marriage is the end of the sexual revolution and libertinism generally and a return to the bourgeois repression of the Victorian era:

That's right, I said it: this is a landmark victory for the forces of staid, bourgeois sexual morality. Once gays can marry, they'll be expected to marry. And to buy sensible, boring cars that are good for car seats. I believe we're witnessing the high water mark for "People should be able to do whatever they want, and it's none of my business." You thought the fifties were conformist? Wait until all those fabulous "confirmed bachelors" and maiden schoolteachers are expected to ditch their cute little one-bedrooms and join the rest of America in whining about crab grass, HOA restrictions, and the outrageous fees that schools want to charge for overnight soccer trips. 

And that's not all:

The neo-Victorian morality will protect who you want to marry -- male or female, or maybe even something in between. But the wider open marriage is, the less necessary it becomes to defend the right to carefree sex -- or children -- outside of marriage. One can imagine a Republican politician fifty years hence ruining his career when he throws over his husband and children for a younger man.

Um, sure, maybe. But what of it? Would that really be a problem?

Actually, McArdle doesn't seem to know what she wants. On the one hand, she longs for "the old marital norms" because she's apparently worried about the children of all those single mothers out there (who, of course, shouldn't get any government help, conservatives and right-wing libertarians like McArdle say), but on the other she seems to think marriage rights should be limited, or just that there shouldn't be so much marriage, so that there can be more "carefree sex," sex for the sake of pleasure, a lot more sleeping around, by which I assume she also means gays fucking each other in bath houses instead of making love in their marital beds in some suburban dystopia, lights off, the dishes put a way, the kids finally in bed, maybe getting off before Colbert is over, maybe not.

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Supreme Court may dismiss Prop 8 case

By Michael J.W. Stickings

From the Times, it looks like a majority opinion may be emerging on the Supreme Court regarding the same-sex marriage case currently before it:

As the Supreme Court on Tuesday weighed the momentous question of whether gay and lesbian couples have a constitutional right to marry, six justices questioned whether the case, arising from a California ban on same-sex marriages, was properly before the court and indicated that they might vote to dismiss it. 

"I just wonder if the case was properly granted," said Justice Anthony M. Kennedy, who probably holds the decisive vote, in a comment that showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue.

Justice Sonia Sotomayor seemed to share that concern. "If the issue is letting the states experiment and letting the society have more time to figure out its direction," she said, "why is taking a case now the answer?"

This would hardly be the optimum outcome for same-sex marriage supporters such as myself. But it wouldn't be a bad one, and it may be the best possible one from this court. 

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Heightened scrutiny

By Mustang Bobby

As you may have heard, last week the Obama administration filed an amicus brief in the Supreme Court case against Prop 8. Greg Sargent explained why this is a big deal:

The key to the brief is that it makes two arguments. The first is that it agrees with the ruling of a lower court — which found Prop 8 unconstitutional — that challenges to the constitutionality of such laws should require that they are subjected to "heightened scrutiny." That means the court should hold their rationale for discriminating to an extremely high standard, and strike them down if they fail to have a credible justification. The brief does that here, in a reference to previous Supreme Court ruling in cases involving challenges to discriminatory laws:

[C]lassifications based on sexual orientation call for application of heightened scrutiny. Each of the four considerations identified by this Court supports that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people — as Proposition 8 itself underscores — are a minority group with limited power to protect themselves from adverse outcomes in the political process. [...]

Because a classification based on sexual orientation calls for the application of heightened scrutiny, petitioners must establish that Proposition 8, at a minimum, is "substantially related to an important governmental objective."

The second key to the brief is that it argues that when you apply "heightened scrutiny" to Prop 8, it is found to violate the equal protection clause of the U.S. Constitution.

What this means is that the government, while focusing its brief on Prop 8 itself, has, for all practical purposes, asked the Supreme Court to set a precedent that can be applied to all state laws banning gay marriage — the arguments that these laws must survive "heightened scrutiny," and that they violate the Constitution.

If the Supreme Court strikes down Prop 8 based on the heightened scrutiny argument, then it could invalidate all the laws in the country that ban marriage equality, much in the same way that Brown v. Board of Education invalidated school segregation in places other than Topeka, Kansas. It would set a precedent for overturning other laws that discriminate against members of the LGBT community, such as the adoption restrictions in Florida, already pretty much ruled unconstitutional by lower courts.

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Obama Administration joins fight for marriage equality at Supreme Court

By Michael J.W. Stickings

Not to be lost in Woodward-gate, Sequester-gate, and whatever other shiny objects are occupying the media's attention, this is pretty significant:

The Obama administration threw its support behind a broad claim for marriage equality on Thursday, and urged the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there.

In a forceful argument, the administration claimed that denying gay couples the right to marry violates the Constitution's equal protection clause. It said that Proposition 8, the state's ban on same-sex marriage, should be subjected to "heightened scrutiny" — a tough test for any law — and stated flatly that "Proposition 8 fails heightened scrutiny."

Yes, it's the Obama Administration, but it's also the federal government declaring marriage equality to be a constitutional right.

And even if the federal government fell short of calling on the Supreme Court to rule all bans on same-sex marriage unconstitutional, focusing instead on the case at hand in California (perhaps to avoid coming across as pushy and heavy-handed), it still took a major step forward in the fight for marriage equality.

It is now up to the Supreme Court to decide if it stands on the side of justice, history, and public opinion or whether it's still stuck in the divisive bigotry of the past. 

Wacky argument against same-sex marriage

By Frank Moraes

Jonathan Chait reported something yesterday that was so unbelievable that I had to look into it. Conservatives were at the Supreme Court the week before last trying both to get California's Prop 8 (anti-gay marriage) upheld and to force the White House to enforce the Defense of Marriage Act. As Chait rightly points out, its fine for a conservative to just be against gay marriage because he is, "But if you're a lawyer defending a gay-marriage ban in court, you need an actual legal reason for your position." And boy oh boy did the conservatives come up with an actual legal reason!

The conservatives are arguing that same-sex couples should not be allowed to marry because they don't have accidental pregnancies. Chait says, "Gay couples don't get drunk and wake up pregnant." Therefore: no marriage for you!

I had a hard time believing this. Was it April first? No. Was there some giveaway in the text -- a nod and a wink? No. So I clicked over to the L.A. Times, "Gay Marriage Opponents Take Unusual Tack With Supreme Court." Chait was telling the truth. The article reports that the lawyers are arguing, "Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society."

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Supreme Court to hear Prop 8 and DOMA cases

By Mustang Bobby

(Ed. note: For more on this, see my post from yesterday. My initial sense is that Chief Justice Roberts (who, I think, thinks about his and his court's place in history and how he and it will be perceived) will vote with the liberals and that marriage equality will win. Or the majority will punt, refusing to make any sort of definitive ruling. It's hard to see the justices collectively ruling that same-sex marriage is unconstitutional given recent dramatic shifts in public opinion and legislative action. -- MJWS)

The Supreme Court will hear arguments on both the Defense of Marriage Act (DOMA) and California's Prop 8. Here's some background on both cases:

The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court's decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state's Supreme Court allowing same-sex marriages.

A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.

[...]

The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for the purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The Windsor case made its way to the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, which also struck down the law, even before the appeals court had ruled.

The two cases will go before the court by March with rulings expected by the end of June.

As expected, both sides are crowing that their side will win (JMG has a compendium of reactions), but since at least one request for a ruling by the Supreme Court came from the losing side, my instinct tells me that marriage equality will win.

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Excitement and trepidation: Supreme Court to rule on same-sex marriage

By Michael J.W. Stickings

In case you missed it, there was huge news coming out of SCOTUS yesterday:

The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.

The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The court's move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After the elections last month, the number of states authorizing same-sex marriage increased by half, to nine. 

So the Court may rule on the constitutionality of same-sex marriage, or it may not.

And if it determines, with public opinion shifting and proponents winning at the state level, that it's an issue best left to the political arena, it may punt.

Read more »

Reading the ruling on Prop 8

By Mustang Bobby

It's kind of fun to read the reactions among the wingers over the ruling yesterday in California that struck down Prop 8 as unconstitutional. The way they tell it, a bunch of activist judges rode roughshod over the rights of 7 million Californians and in one fell swoop imperiled the laws in 43 states. While this kind of knee-jerk reaction is typical in cases like this, it might be a good idea for the pearl-clutchers to actually read the ruling itself before going off on their predictable fund-raising rants.

I'm not a lawyer, but I don't think it takes a law degree to understand the ruling itself. Essentially, the majority upheld the lower court ruling that Prop 8 violated the Fourteenth Amendment to the United States Constitution by depriving a specific class of people -- gays and lesbians -- the right to define their relationships with the word "marriage." Since California already had domestic partnerships and afforded same-sex couples all of the same benefits of marriage without calling it that, taking away the right of same-sex couples to use the word "marriage" in describing their unions was a denial of equal protection. The court also went to great pains to cite another landmark case, Romer v. Evans, in which the U.S. Supreme Court held that Colorado's Amendment 2, passed in 1992, unfairly targeted a specific group and deprived them of a right -- in that case, the right of cities and municipalities in Colorado to pass anti-discrimination laws -- without just cause: "[T]he amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Yesterday the judges held that the voters of California did the same in passing Prop 8.

The court did not grant same-sex couples a "special right." The court did not endanger the millions of straight couples' marriages in the state of California. The court did say that Prop 8, which promised to protect and enhance the institution of marriage and the future of California's children, did no such thing; depriving a class of people from using a word did not magically strengthen the family or prevent schools from discussing same-sex marriage. The court did not legislate from the bench, nor did it re-write the marriage laws of the state. All it did was say that the state, by legislation or referendum, could not take away a right from a group of people for no other reason than the fact that they are "disfavored" by a majority of the voters. The Fourteenth Amendment guarantees equal protection, and Prop 8 violated it.

All of that will be lost on the anti-gay crowd, and I fully expect to hear all sorts of carrying on from them about how the Supreme Court will strike this down once and for all and at last put those icky queers and whatever it is they do in their bedrooms in their place in Hell. But if the Supreme Court does hear the case -- and there's no guarantee that they will -- it will be interesting to see how they could overturn a ruling that relies heavily on Romer v. Evans as precedent.

Meanwhile, Prop 8 still remains in effect: same-sex couples can't get married again in California... yet. But it's only a matter of time. 

(Cross-posted from Bark Bark Woof Woof.)

BREAKING NEWS: Federal appeals court rules California's anti-gay Prop 8 unconstitutional

By Michael J.W. Stickings

Via twitter: 

BREAKING: Federal appeals court finds California's Proposition 8 unconstitutional. (link)

-- TalkingPointsMemo (@tpm)

Great news, indeed. But let's keep our excitement in check.

First, it's my understanding, without having gotten into the weeds, that the ruling is fairly narrow.

The issue is that California granted the right to marry and then took it away, hence Judge Reinhardt's view that:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort."

Which is to say, this is not a ruling on the constitutionality of same-sex marriage but rather on giving (or acknowledging rights) and then taking them away.

Though certainly the ruling is not without its implications. If you're taking, even in legal fashion, about "the status and human dignity of gays and lesbians," it would seem that you support same-sex marriage and consider its illegality under any circumstances unconstitutional and unjust.

Second, the 2-1 ruling was made by a 3-judge panel of the Ninth Circuit. Prop 8's proponents can petition to have the case reheard by the full 11-judge panel.

Or, third, they could just appeal directly to the Supreme Court, and you know how that might go with a 5-4 conservative majority. (Yes, I'm counting the right-leaning Kennedy, the supposedly moderate swing vote, as a conservative.)

We shall see, of course, but for now at least we can applaud a truly fair and just ruling.