Same-sex, whole-milk marriage: 50 Shades of Gay

[yovargas]

If you're going the destination wedding route, there's so many options now that it's getting kind of annoying.

[Primula Baggins]

Complain, complain, complain.

[Frelga]

Now you can have the same problems as the rest of us.

Come to think, that's what equality is all about.

[Inanna]

True that.

[Primula Baggins]

A panel of three judges from a federal appeals court in Cincinnati has just upheld same-sex marriage bans in four states (the vote was 2:1). The states would be Kentucky, Michigan, Ohio, and Tennessee.

I don't think the Supreme Court is going to be able to duck the issue and wait it out after all.

[Inanna]

Wow. Just when you think... What were their arguments?


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Sent with elvish telepathic powers with a dashed line above to make Jude happy.

[Voronwë the Faithful]

Essentially, their argument is that it is up to the states to decide whether to allow same sex marriage or not, which is ridiculous since the states can't decide to violate the U.S. constitution. As Prim said, this now will have to go to the SCOTUS and be resolved one way or the other. As I said previously, and is all the more true after the election this week, if the composition of the high court changes further before the case is heard (which almost certainly would mean more conservative), it could set up a situation where the legality of many marriages could be brought into question. I don't think that is likely, but I don't rule it out as a possibility.

[yovargas]

Soooooo.....Florida! Or should I say "Florida?" Or maybe "Florida!?" As with many of these cases I'm kinda confused by exactly what the hell is going on legally but they say the gays gonna be getting married here tomorrow so a cautious to us getting added to the list!

[Voronwë the Faithful]

Yes, Florida. Probably. The legal situation there is certainly convoluted. Here is a good summary:

http://www.miamiherald.com/news/local/c ... 81022.html

[Voronwë the Faithful]

Meanwhile, back at the SCOTUS, the court had its first conference of the session yesterday, and failed to take action on most of the same sex marriage petitions (the only one that it took any action on was to reject the petition challenging a District Court ruling in Louisiana affirming a ban on same sex marriage, since that ruling has not yet been reviewed by the Court of Appeals). The court relisted the other four pending petitions for their next conference on Friday. We'll see whether they take any action then.

[Voronwë the Faithful]

And we are on. Late June next year is going to be a very interesting time, with this and the ACA decision both likely to be the last day of the term, or close to it.

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[Inanna]

So, they decided to hear the four petitions this year?


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Please bear with my typos & grammar mistakes. Sent from my iPhone - Palantirs make mistakes too.

[Voronwë the Faithful]

Yes, sorry, I only had time for a drive-by post. The court granted review on two specific questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage
between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? They allotted a total of 2 and a half hours for oral argument, 90 minutes for Question 1 and 60 minutes on Question 2. It almost certainly going to be scheduled for oral argument during the last session, which is scheduled for April 20-29.

As is often the case, and particularly true here, it comes down to Justice Kennedy. He has generally been favorable to gay rights, and has actually written almost all of the SCOTUS opinions that have gotten us to this point: Lawrence v. Texas, in which the court invalidated laws making gay sex illegal, Romer v Evans, in which the court ruled that a state constitutional amendment in Colorado preventing protected status based upon homosexuality or bisexuality did not satisfy the Equal Protection Clause, and most critically U.S. v. Windsor, the case in which the court held that restricting U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional. It was the Windsor decisions that led to a series of federal appeals court to invalidate state same sex marriage bans, until the Sixth Circuit of the Court of Appeals bucked that trend and upheld such bans (both in terms of prohibiting same sex couples from marrying in those states, and allowing those states to refuse to recognize same sex marriages performed in other jurisdictions). There is no question at all that the four conservative justices will vote to uphold the bans, and that the four more liberal justices will vote to invalidate them. It seems likely that Kennedy will side with the latter (and probably write the decision himself), but I would not be surprised if he found a way to limit the holding somehow.

[Voronwë the Faithful]

This is a good article explaining why it is very likely that the court will invalidate the bans, because of the absolute mess that would happen (due to their own actions), if they do not:

http://www.buzzfeed.com/chrisgeidner/th ... .ku6qZM2g8

[Inanna]

Thanks a ton V.


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Please bear with my typos & grammar mistakes. Sent from my iPhone - Palantirs make mistakes too.

[Primula Baggins]

That made me feel a lot better, too (except for the theory Voronwë posited in the health care thread that this makes it that much more likely that the Court will gut Obamacare ).

[Alatar]

On a related note. Leo Varadker, the Irish Minister for Health has publicly come out as a gay man. The nice thing is that most people's attitude seems to be "Why is this headline news?". The sad thing is that it still IS headline news.

[Voronwë the Faithful]

Well, we need to walk before we can run.

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[Voronwë the Faithful]

Looks like we can add Alabama to the Majestic Majority, despite the best efforts of the Chief Justice of the state's Supreme Court, Ray Moore. Some people might recognize that name. During his previous stint as Chief Justice, he made big news by refusing to abide by a federal court order to remove a statue of the ten commandants from the state judicial building. As a result he got removed from office, but subsequently made a "comeback" and is again claiming that federal courts have no authority in his state, and tried to order probate court judges not to follow an order from a district court judge ruling that same sex marriages can not be prohibited. The state also tried to get the SCOTUS to stay the order until the same sex marriage cases pending before the high court are decided, but the court refused. Interestingly, only two justices dissented from the refusal, Scalia and Thomas. I wonder whether that is an indication that Roberts and Alito have "evolved" on this issue? Maybe we'll end up with a 7-2 decision.

Edited to add: I should clarify that Scalia and Thomas are the only justices to publicly dissent from the denial of the stay. It is possible that the other conservative justices did dissent and just didn't make it public. However, in the public dissent, Thomas specifically stated that he felt that this decision indicated that the court had "made up its mind" about same sex marriage.

[Primula Baggins]

It would be a kindness if they didn't wait to announce their decision until the last day of this term.