Once Again, It’s The Eve Of History At The Supreme Court
Tomorrow promises to be an historic day at the Supreme Court, but it's been a long legal, political, and social battle.
By this time tomorrow, we should have at least some idea how the arguments regarding the challenges to bans on same-sex marriage in four states — Michigan, Ohio, Kentucky, and Tennessee — went for both sides of the issue, thanks to the fact that both the transcript of the argument and the audio of the proceedings will be released, according to the Clerk’s office, as early as possible after the arguments themselves have concluded. From that point forward, until what will likely be the last day of the current Supreme Court term when the Court’s opinion in this issue is likely to be issued, legal experts and other observers on all sides will pick over the courts argument, note which Justice asked which questions, and try to fathom which way the Court will rule on what seems likely to become one of the landmark cases of the Roberts Court along with its decisions on the constitutional of the Affordable Care Act and the Defense Of Marriage Act.
As I’ve said before, of course, it’s often dangerous to try to predict how the Court is likely to decide a particular case based upon oral argument, in no small part because Justices often ask questions for reasons that don’t necessarily indicate where they might ultimately land on the issue. That being said, there seems to be a some degree of agreement among those that follow the court closely that the Court is far more likely to issue a ruling striking down state-law bans on same-sex marriage than it is to uphold them. In no small part, this is due to the long series of cases that the Court has issued on the issue of gay rights, all of which seem to be pointing in that direction. It started in 1996 with Roemer v. Evans, in which the Court struck down a Colorado law that purported to invalidate municipal civil rights ordinances protecting gays and lesbians. Seven years later, in Lawrence v. Texas, the Court struck down laws banning sodomy between consenting adults, reversing a decision that a Supreme Court with different membership had issued in 1986. Finally, in 2013 in United States v. Windsor, the Court struck down the Defense of Marriage Act’s ban on Federal recognition of same-sex marriages, and while the decision was largely based on Federalism considerations, it also made arguments regarding equal protection that served as the basis for a long series of lower court decisions over the past two years that have struck down state law bans on same-sex marriage. In each of these three cases the Court, with Justice Kennedy writing the Majority Opinion each time, expanded the scope of Constitutional protection granted to sexual minorities by the 14th Amendment and other provisions of the Constitution to the point where, in the eyes of many observers, striking down state law bans would have to be next logical step unless the Court were to essentially repudiate its previous case law.
Another clue that many observers have looked at in trying to divine how the Justices might rule in the cases it will hear tomorrow is how they have treated the cases that have come before it since the Windsor decision. Federal Courts spent much of the last two years since that case was handed down striking down state laws and constitutional amendments barring same-sex marriage, and they used Justice Kennedy’s reasoning in Windsor as one of the justifications for their holding. Eventually, many of those cases made their way to the Justices, but when instead of taking the appeals of those cases from the Fourth, Seventh, and Tenth Circuit Courts of Appeal, the Justices declined to hear them at all. This meant that the lower court rulings in those cases stood and same-sex marriage essentially became the law of the land in the states covered by those circuits. Then, when the Ninth Circuit followed those other court’s and issued a similar ruling, the Justices declined to stay the effect of that ruling for states such as Idaho and Montana, meaning that marriage became legal their as well. This meant that, over the course of one week in October, the number of states where same-sex marriage was legal grew from 19 to 29. They did the same thing in connection with cases arising in Florida and Alabama. It was only when a Circuit Court of Appeals issued a ruling contrary to the other circuits, that the Justices finally accepted a same-sex marriage case for appeal. As I said at the time, it seems unlikely that the Justices would allow marriages to stand in all of these states if there wasn’t some kind of consensus among a majority of the Justices regarding this issue. Otherwise, they would be consciously creating a situation where thousands of people would be acting in reliance upon their actions beginning last October only to have the rug pulled out from under them later on. While it’s possible that could happen, it seems rather unlikely that the Justices would consciously set up a scenario like that.
Of course, until the decision is handed down in June, we can’t be sure exactly what the Justices intend or what they will do.
Looking forward to tomorrow, Lyle Denniston, who previously summarized the legal positions taken by each side in the cases, has a pretty good summary of what the Court will be dealing with, as does Buzzfeed’s Chris Geidner. The arguments, however, should be largely familiar to anyone who has followed the issue over the past several years. Perhaps the more interesting thing about all of this, though, is the how these arguments represent the culmination of one of the most substantial changes in public opinion in history. It was just some twenty years ago that polls were showing that three-quarters of Americans opposed same-sex marriage and the effort by one state to legalize it led to the passage of the Defense of Marriage Act by an overwhelming and bipartisan margin and a wave of states changing their laws to ban same-sex marriage. Now, we are at the point where the majority of Americans support marriage equality, same-sex marriage is legal in thirty-three out of the fifty states, and the Supreme Court is about to hear argument on a case that could end up being the gay rights movement’s Loving v. Virginia.
Law Professor Michael Dorf recently made this observation about that aspect of this issue:
The recent change in attitudes towards same-sex marriage is remarkable for its speed, but that may simply reflect the well-known “tipping point” phenomenon popularized and arguably oversold by Malcolm Gladwell. Even if some of Gladwell’s examples are controversial, however, the underlying phenomenon undoubtedly exists. For example, ice remains ice as one heats it from sub-zero temperatures to above 32° Fahrenheit, and then it rapidly melts.
Tipping points are especially likely in the political realm because of majoritarianism. A position that lacks support will meet with little success, even as it gains considerable support, but then, when popular opinion crosses the fifty percent threshold, rapid legal change can ensue.
The courts are part of this process. Judges and Justices take account of public opinion both directly in some domains—as when determining whether a punishment is consistent with the “evolving standards of decency” that the Court evaluates in Eighth Amendment cases—and indirectly—as when they decide to duck a question because they regard the answer that the law should give as broadly unacceptable to the public.
Judges and Justices also shape public opinion. Justice Louis Brandeis famously referred to government as an “omnipresent teacher,” and while there is no shortage of criticism of the courts, important judicial decisions can catalyze political action. At the very least, they become part of a wider conversation that includes politicians, activists, journalists, scholars, and others.
Finally and perhaps most obviously, judges and Justices live in the same social world as the rest of us. As more and more LGBT Americans came out, judges and Justices came to understand that these people could be counted among their neighbors, friends, and family members. A judge or Justice who is asked to preside over the same-sex wedding of a former law clerk cannot help finding the experience relevant to how he or she views the constitutionality of a law forbidding such a ceremony.
Contrary to the arguments of the Republicans and conservatives who still hold on to their opposition to same-sex marriage, the Courts are not trampling on public opinion in these cases, they are reflecting it. Over the past twenty years, starting at roughly the same time that the Supreme Court issued its first significant gay rights opinion, public opinion on homosexuality in general and same-sex marriage in particular has changed significantly, and both the political process and the courts have reflected this change. If, as most observers expect, the Justices issue a ruling that strikes down the bans on same-sex marriage in those states where they still exist, they will simply be taking that change to its logical course and, of course, recognizing the rights granted under the Constitution to gay and lesbian couples just as they are granted to the rest of us.
A Conservative argument for marriage equality.
Too bad there are so few Conservatives left…it will be lost on Republicans.
This whole thing should be studied by political scientists. One of the most fascinating things I’ve watched in my life of obsessing over politics. It was like Blitzkrieg vs. the French Army. A long period of build up, sudden movement, utter collapse. The anti SSM forces are completely shattered. They’ve got nothing. Amazing time in history. We should get Dr. Taylor on this. He should write a book.
Apparently you haven’t heard that politics is now utterly boring.
Well states gotta do what states gotta do.
As a citizen of Ohio, I am ashamed that state resources are being wasted in the “battle of bigotry”, while largely ignoring infant mortality rate in Ohio.
Ohio is tenth out of 55 states and territories.
I remember progressives criticized Scalia (as a slippery slope argument) for saying Lawrence v. Texas would lead to Gay marriage.
Now the same progressives are saying it is a slippery slope argument and a debating trick that gay marriage will lead to overturning polygamy laws.
Holy false equivalence, Batman.
Same sex marriage is about treating everyone equally, no matter their sexual orientation. Everyone gets the right to marry who they love. The same decision was made regarding inter-racial marriages decades ago.
The same arguments cannot be made about polygamy.
“Everyone gets the right to marry who they love. ”
Why can’t someone marry the person they love even if they are related or already married?
Those are policy questions, not questions of civil rights. No one is being treated as a second class citizen. Everyone has the right to marry one spouse at a time. Nobody is treated any better or worse than anyone else.
in addition there are legitimate public health related issues (physical and mental health) that preclude such things. For instance, offspring of relatives closer than second cousins are considered at higher risk of birth defects. Children with birth defects and their families suffer, and also place additional burdens on the health care system.
It’s important to note that the anti-gay-rights folks tried to present their side as concerned about the health of kids in a single-sex marriage, but were quickly and thoroughly debunked. They were made to look pretty silly, really.
Because the state has a legitimate interest in avoiding alliances that are structurally disadvantageous to a particular group, in this case females, and which challenge established property law, and which concentrate available breeding stock (sorry, but I can’t think of a gentler term) in the hands of one person.
@Paul L.: It’s much easier to adapt the present legal chassis to SSM than it is to adapt it to polygamy. Second, I doubt there’s as much interest in polygamy as as there is in SSM.
@Paul L.: Just to play devil’s advocate… with the number of divorces, and the number of children living in these arrangements, perhaps it actually is in the interest of the state to make it easier to create legal family units that are more than two adults.
One kid, his father, his father’s new wife, the kid’s mother, and the kid’s step brother from the father’s new marriage might all be in one economic family unit for property distribution, medical decisions, etc. These units may even be overlapping.
@C. Clavin: ” For instance, offspring of relatives closer than second cousins are considered at higher risk of birth defects.”
But “Twenty-five states prohibit marriages between first cousins. Six states allow first cousin marriage under certain circumstances, and North Carolina allows first cousin marriage but prohibits double-cousin marriage. States generally recognize marriages of first cousins married in a state where such marriages are legal.”
and 20 states allow first cousins to marry, no restrictions.
And, as it turned out, Lawrence v. Texas did not lead to Gay Marriage.
Frankly, the arguments against polygamy and , to a degree, incest don’t really hold water. Those against prostitution might but on different grounds than usually assumed.
While I understand the strategic need of SSM proponents to deny this, actually it’s not easy to make a convincing case against polygamy once you accept the “marry who you love” argument.
While it probably can’t be litigated on equality grounds, the underlying argument seems rather shaky.
I read this one in a book called “Questions That Won’t Be Put Before the Supreme Court.” It’s in the chapter called “Distractions.”
Well, there’s one key difference, which is that polygamy, unlike a two-person marriage, presents many challenging issues when it comes to joint custody of property, taxation, divorce involving child custody and support arrangements, alimony, dissolution of jointly-held property, etc. etc.
Most (though not all) of the legal structure we’ve built around marriage and divorce works the same whether or not the couple is gay or straight — but that’s not true if the marriage unit would be say, three or four people. What happens to the house when a triple gets divorced? To the bank accounts? To the children? Who pays alimony, and to whom?
Well, let’s just state one not-so-obvious truth:
Polygamy, incest, and homosexuality are three distinct and separate things. They don’t belong in the same category. I understand it seems like they do, but that’s just an error.
And many countries also allow co-sanguinous marriage.
For backwaters like SC it’s a policy decision…it’s not an equal rights issue.
They aren’t granting inbreeders extra rights, or denying the rights of those who don’t inbreed.
@C. Clavin: They aren’t granting inbreeders extra rights, or denying the rights of those who don’t inbreed.
Right — I mostly posted it for the part about the states that don’t allow first-cousin marriages still recognizing legal marriages from other states. That seemed important to note, given that many states don’t even recognize legal same-sex marriages from other states.
Ok, since no one else seems willing to ask the squicky question, I’ll bite the bullet. If the only real argument against adult incestuous marriage (children can’t consent and no parents’ rights group letting that change EVER) is potentially genetically damaged offspring then there is no real legal basis, is there? We allow people to procreate right now who may produce children with Tay-Sachs and other fatal diseases that’s a frightening roll on the Punnett square with better odds then a sibling pair. It’s not illegal to have children with Down syndrome or autism or color blindness – all genetic issues. There’d be riots if passing a genetic test was a requirement for marriage or kids.
Other then the squick factor and Westermarck effect, what logic is there to using genetics and their potential impact on future children as a basis to deny marriage?
EQUALITY doesn’t mean that perversion is equal to decency. It doesn’t mean that two guys indulging in fecal penetration are doing something of equal biological and moral value as man and woman having real sex. As marriage has biological and moral value, it makes no sense to pretend that homosexuality and trans-genderism have equal value with true sexuality.
If everything should be hailed as ‘equal’, then teach Creationism in schools in the name of SCIENCE EQUALITY. Don’t ‘discriminate’ against Creationists.
Promote voodoo medicine in the name of ‘medical equality’. Don’t use ‘Euro-centicism’ to ‘privilege’ Western empirical medicine over non-white supernatural medicine. That’s ‘racist’.
There are so many circles of lies here.
It goes to show that the search for truth can slide into a cesspool of lies.
There used to be a time of undue panic about homos. People sought all sorts of ‘scientific’ reasons to treat it as a mental sickness.
But then, it was realized that homos are just born that way, and there was nothing that can be done about it.
So, the idea was that homos should be allowed to do their homo things.
Still, it was understood that homo stuff was biologically useless, gross, and/or ridiculous because factually it is. Fecal penetration among men indeed.
There was truth all around: homos are born that way AND homo-ness is a natural abnormality that turns off most people for obvious reasons. So, let homos be homo, but let’s not pretend that it makes biological or moral sense..
But then the lies began, and one lie began to snowball into other lies.
1. We were told that homosexuality is ‘rational’ and ‘natural’–meaning naturally normal than naturally abnormal–, and if you find it gross or weird, you are a ‘homophobe’ suffering from an ‘irrational’ and ‘unnatural’ extreme aversion to something healthy.
In fact, ‘homophobia’ doesn’t exist. People’s aversion to homosexuality is natural. What are unnatural is homomania and homophilia. Indeed, the fact that 24/7 homo propaganda costing billions has to promoted constantly to make us support the agenda is proof of how unnatural homomania is. It’s like North Korea has to push the cult of great leader day in and day out to perpetuate the myth that the fat Kim is a great man. End the propaganda and indoctrination, and people will see him for the pig he is. Turn off the lie machine and people will quickly revert to the truth on the true nature of homosexuality.
2. We were told that homos were pure-as-snow victims of AIDS only because of Reagan’s ‘indifference’ and that the spread of AIDS had nothing to do with wanton homo behavior.
3. We were shown so many homos on TV and in movies that American public began to think that 25% of Americans are homo even though homos are only 2% of the population.
4. We were only shown clean-cut idealized images of homos while anyone who opposed the homo agenda was portrayed as a degenerate pervert. Audiences are shielded for the most part from the gross physical side of homosexuality.
5. We were told that homo agenda is about choice and freedom, but then anyone who uttered anything critical about homosexuality or the homo agenda was shot down, reviled, and attacked.
6. We were told that homo agenda would simply allow homos to their own thing without interfering with our values or institutions. Clinton signed marriage act and Obama voted for religious freedom act. They were both lies and tricks.
7. Homo agenda went from a matter of free choice among homos to mandatory requirement among straight people to not only tolerate homos but to mute their own criticism of homos, then to praise homos, then to celebrate homos, then to worship homos, and then to attack anyone who doesn’t do likewise. In big cities, politicians don’t have a chance unless they attend homo ‘pride’ rallies. It is a mandatory requirement.
Why must straight people grovel and worship homos? What is so great about men porking each other in the fecal hole, or women having ‘sex’ by humping a hole with a hole, or men/women undergoing genital mutilation to become the opposite sex?
8. Then, the homo agenda said that homo should get ‘married’ on the basis that homosexuality is just as ‘naturally’ normal and rational and moral as real sexuality. This led to the crazy notion that ‘two mommies’ or ‘two daddies’ can have kids. We were supposed to pretend that if a lesbian has a man impregnate her, she had the kid with her lesbian lover/wife than with the man.
Lies and lies, but in a corrupt society made up of cowards(who shudder at the feet of Jews who chose homos as their favored allies), even conservatives have kept their mouths shut. While hysterically howling about Israel and Iran, they don’t dare take a strong stand against the homomaniacal policies favored by Liberal Jews and Neocon Jews as well.
9. Then, homos began to infiltrate the churches and turn church after church into swallowing the nonsense that Christianity is compatible with the homo agenda and ‘gay marriage’.
10. People were told the lie that the homo agenda is ‘leftist’ and about helping poor helpless victims when, in fact, it’s been the favored agenda of the oligarchic class that has long appreciated the loyal service of vain and power-hungry homos.
This brings us to a problem. All these lies began with the truth. The truth was homos are born that way, and they can’t do anything about it, so they should be allowed to do their homo things on their own.
So, why couldn’t homos be content with the truth? We accepted that they are born fruity and tolerated their homo stuff among themselves. Why couldn’t it end there?
It’s because we overlooked the homo psychology. By nature vain, narcissistic, hissy, sneering, ooh-lala, whoopity-doo, bitchy, queenie-ish, and snotty, it was never enough for homos to just be tolerated. They have a pagan-god complex and wanna be worshiped as royalty and Adonises. They have personalities of ‘radical will’ that wants to be center of the world.
I mean, just think about it. They are so pushy and deluded that some of them put on women’s dress and makeup and really believe that they look like hot stuff. Indeed, they are so demanding that they insist that WE find them ‘beautiful’ too. Now, it’s become bad form according to PC for us to laugh at and mock trannies who look ridiculous.
We want to accept the truth, but sometimes there’s more to the truth than we may have originally assumed. Even as we accepted the truth of homosexuality, there was a hidden truth that we ignored: that homos have a problem with the truth. i.e. even as we accepted the truth about them(they were born homo and have a tendency to indulge in gross and weird ‘sexual’ behavior), they could not handle the truth about themselves. They wanted to believe the lie that their ‘sexuality’ is biologically the equal of ours, that their ‘morality’ founded on biological lies is not only as good as our morality but even better, indeed to the point where we should get on our knees and bow down before them.
Indeed, the very nature of homosexuality is deceitful. It is a natural lie. Nature produces sexually dysfunctional people such as homos who believe that the male anus is a ‘sex’ organ. It produces men who want their penis removed and fitted with fake vaginas that they believe to be just as good as real vaginas.
Homosexuality produces feelings and mind-sets in homos that prefer the lies about biology.
Homosexuality produces lesbians who rub pooters together and produce no life but then hire a man to become pregnant and then lie to themselves that THEY had the child together.
But then, lies + power = forcing everyone else to swallow the lie as well or else.
As Jews have the power over media and government, they can force or brainwash us all to swallow the lie pushed by homos.
So, what is to be done? I’m not a religious nut who wants to say “God hates fa*s.”
I accept the biological reality/truth about homosexuality, BUT, homos, being vain and egotistical and queenie-meanie, cannot accept the truth of their biology. They not only say that they were born that way(truth) but insist that their ‘sexuality’ is just as normal, valid, and rational as real sexuality is(lie) and that a homo’s anus(that excretes feces) is just as much a ‘sex organ’ as a woman’s vagina that produces life. A tranny’s fake vagina is just as real as a real vagina. And ‘two daddies’ can have kids together. And anyone who disagrees is a ‘homophobe’ with mental problems and is a moral degenerate to boot.
I can accept the truth about homos but homos can’t.
This is the nature of the conundrum:
Suppose someone is a compulsive liar, and we try to make him stop lying. But suppose it turns out that he can’t help it. He was born with the compulsive lying gene. He feels this powerful compulsion to lie and simply can’t stop.
So, we accept the truth and allow him to be a compulsive liar.
Good for everyone, right? He gets to compulsively lie, which he can’t help. And we tolerate the fact that he loves to lie.
No, it doesn’t end there. Being a compulsive liar, he not only lies but insists that he is telling the truth. He then says his lies or ‘truths’ are just as valid as our truths. Then, he accuses us of telling lies and says his ‘truths'(lies) must be favored over our ‘lies'(which is actually the truth).
Now, what would happen if such compulsive liars were to be favored by the rich and powerful(esp the untouchable Jews) who use all their financial, governmental, legal, cultural, and media power to promote the compulsive liars as ‘the greatest truth tellers’ whom we all must all obey? Sheeple can be made to believe in anything through media manipulation and mass education/indoctrination, especially if they’ve been cut off from deeper truths of biology, morality, and culture.
But Cons are to blame too because their ideology has become a big lie. It is based on the false premise that Jews are totally wonderful, the best friends of conservatism and Christianity, and that serving Jews is what conservatism is all about. In truth, Jews have been at the forefront of pushing the homo agenda.
As for the religious right, they can’t accept the truth of evolution and biology, such as that homos are born that way.
Anyway, it’s not enough for us to accept the physical truth. We need to understand the psychological truth. Physical truth is that homos are born that way and that their ‘sexuality’ is biologically worthless and morally dubious(as it is a natural lie).
But there is also the psychological truth that says homos are vain, pushy, bitchy, and can’t accept the truth that their ‘sexuality’ is not equally valid as ours.
For this reason, the acceptance of the truth about homos can lead to a slippery slope of lies because, once homos are given even the slightest bit of legitimacy, they work obsessively to force all of us into believing that EVERYTHING about them is just as good or even better than our sexuality.
So, fecal penetration among men become the equivalent of real sex between men and women.
So, a tranny with fake vagina is as much a real woman as a real woman.
And such stuff are like the ‘rainbow’.
An empire of lies.
@michael reynolds: I see an ample supply of fodder for dissertations covering the shift in attitudes, and in legal doctrine.
@Andrea Ostrov Letania:
Seriously, if you are going to spit out a santorum of hate and stupidity, please try to use some brevity.
Heard that a lot of times and, in all honesty as a lawyer it makes my eyes glaze over. Will it require a rewriting of some laws? Sure. But we do that all the time. And it’s not as if those problems are anything new. We already have multiple person owned property. We already have child custody cases with several involved parties.
Honestly, in a world where we can, without any problem, have companies that are jointly owned by billions of people or where we already calculate the amount of child support that needs to be paid if a father has seven children with three former wives and one current girlfriend the idea that this is some kind of strange insurmountable problem that precludes polygamy is ridiculous. Most every death in the country involves a split of assets between people that is normally equally complicated as a divorce in a polygamy case. And even a short look over our borders shows that there are lots of countries that have mastered these problems without their legal system breaking down. Their solutions may not be our solutions but it puts the lie to the whole idea of this being a real problem.
The real reason we don’t have it is that we (me included) don’t like it. And as gay marriage has shown, “I don’t like it” is increasingly unsupportable as a legal defence against changes :-).
@Ebenezer_Arvigenius: If there ever gets enough push for polygamous or polyandrous marriages, then the law will change. People seem to be getting the same effects from serial marriages, open “swingers”, and having-a-little-nookie-on-the-side, so there hasn’t been the push for it the way there has been for SSM.
Just my assumption.
@Dan Foster: It’s probably our local social disease, sock-puppetting.
Much more likely a cut and paste from a one time hit and run commenter from one of the many online cess pits that push that crap every day.
I don’t know that new laws need to be written, just new contracts. The Netherlands has “living together contracts” that can be for any group (siblings, friends, etc).
@grumpy realist: “It’s probably our local social disease, sock-puppetting.”
She actually has a website, filled with more of the same drivel.