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

[Ellienor]

Yes, I guess the circuit split will eventually lead back to the Court, but I guess I'm not really up on the appeals courts. Even the panels dominated by conservatives might have a hard time continuing to insist that the states have the right to ban gay marriage as more time goes on. I read an interesting piece by http://fivethirtyeight.blogs.nytimes.co ... eans/?_r=0.

Nate Silver argues that the evidence shows that gay marriage is being accepted more and more by two processes: one is that people formerly opposed to gay marriage are switching sides to not oppose it any more, and that younger voters who tend to favor gay marriage are becoming a larger and larger part of the electorate. Projections show that over time, and especially by 2020, it will only be a few of the most socially conservative states that still have a majority of their voters not favoring gay marriage.

In that environment, it's hard to imagine that if a circuit split finally gets taken up in the later teens or early 2020s, that a majority even a conservative leaning court would still have the will to fight on this issue. I imagine if a Republican wins the White House in 2016, he/she will be a fairly moderate Republican in view of the changing demographics (more Latinos) so the chances of a firebreathing conservative being appointed seems low. It would likely be a more moderate one like Roberts.

Maybe.

[Voronwë the Faithful]

In that environment, it's hard to imagine that if a circuit split finally gets taken up in the later teens or early 2020s, that a majority even a conservative leaning court would still have the will to fight on this issue.

Read Scalia's dissent in the Windsor case, and then get back to me on that.

I imagine if a Republican wins the White House in 2016, he/she will be a fairly moderate Republican in view of the changing demographics (more Latinos) so the chances of a firebreathing conservative being appointed seems low. It would likely be a more moderate one like Roberts.

Maybe.

Logically, that makes perfect sense. But I'm not sure that logic prevails in politics -- particularly GOP politics -- these days. Look what happened with the Farm Bill, and what looks to inevitably happen to the Immigration Reform Bill in the House. Of course, logically that would suggest that the GOP's chances of regaining the White House in 2016 is pretty darn small.

Particularly if Hilary runs.

[nerdanel]

If a Republican wins the White House in 2016 and Justice Goldberg or one of the other more liberal justices (or Kennedy) ends needing to be replaced either through retirement of some sudden health issue, it could completely change matters.

Assuming that Justice Ginsburg is the justice in question and we are not time-traveling back through history , my understanding is that she will announce her retirement in the next year or so in order to facilitate her replacement being nominated by a guaranteed Democratic president. I found during my judicial nomination-related excursions in DC earlier this month that this is widely believed and being planned for on the Hill.* However, if Justice Kennedy is replaced during a Republican administration, the Court will very likely take a hard turn further to the right.

* The Democratic concern about this, actually, is that Obama is already behind by nearly three dozen lower court judges on nominations, relative to both Clinton and Dubya. Surprisingly, about a quarter of the outstanding nominations are in states with two Democratic senators (the White House blames the senators' delays for this), which means that the Democrats' failures to confirm judges to these seats are not attributable to the Republican obstructionism narrative. In any event, if much of Obama's judicial nominations attention is focused on picking Ginsburg's replacement, he is likely to fall even further behind in selecting and confirming nominees to the district and circuit courts.

Not that this post is directly about marriage, but new nominees to the federal bench will definitely play a role in continuing to resolve constitutional and statutory questions related to marriage.

[nerdanel]

I haven't read the Windsor (DOMA) opinion yet, but as I said earlier, it doesn't makes sense to me that the equal protection argument should only apply to same sex couples in states with marriage equality and not to all same sex couples.

The quotes I read from the majority decision seemed to emphasize the notion of states conferring recognition (and accompanying benefits), and the importance of respecting those (state) choices. It didn't seem to be a commentary on the merit of those states' decisions so much as on the importance of not having a federal law invalidate the states' will. It seems to me it would have been odd and contradictory to that reasoning to then nullify the same sort of choice they'd just elevated as worthy of deference. It's a bit tricky to have it both ways.

Is there a practical/material difference with respect to treatment in court, of laws passed by referendum vs. laws passed by a legislature?

You might enjoy Part II of Justice Scalia's dissent, Cerin, in which he points out the odd drafting and inconsistent rationales of the Windsor majority. He notes that they begin with extensive dicta on federalism (as you point out - this is the part of the opinion that describes states' prerogative to define marriage and the federal government's historic respect for state definitions). However, Kennedy then moves to a decision grounded in notions of individual equal protection under the Fifth Amendment, which is the ultimate basis for the holding. I agree with Justice Scalia that the federalism analysis is not what's driving the majority, which I think bases its holding on due process and equal protection principles rather than on federalism/states' rights.

However, the SCOTUS Perry decision is not about disrespecting states' ability to define marriage - if it was, Roberts and Scalia would certainly not have joined the majority. Rather, it is about the idea that non-state proponents of the initiative did not have constitutional standing to defend Proposition 8 in court. In other words, had the State of California been willing to appear in appellate court and defend the constitutionality of the law, the Supreme Court would have reached the merits of the case (i.e., whether a state's decision to exclude same-sex couples from marriage is constitutional and thus entitled to deference).

grammar edit

[Voronwë the Faithful]

(You know who I meant; the nice Jewish octogenarian who reputedly can still do 20 real pushups.)

I'm not surprised to hear that that is the narrative, although I am not in the loop enough to have heard. In addition to the issues that you raise, it will set up an interesting dynamic; does Obama name a third woman to the court to keep the current gender balance (or should I say to keep it from getting more unbalanced) or does he appoint someone like Sri Srinivasan, who would be very difficult for the GOP to oppose given the lovefest that his recent confirmation to the DC Circuit proved to be, and who would help the court's diversity in a different way. Of course, that is a discussion that is tangential to the marriage equality issue.

[nerdanel]

(You know who I meant; the nice Jewish octogenarian who reputedly can still do 20 real pushups.)

I'm not surprised to hear that that is the narrative, although I am not in the loop enough to have heard. In addition to the issues that you raise, it will set up an interesting dynamic; does Obama name a third woman to the court to keep the current gender balance (or should I say to keep it from getting more unbalanced) or does he appoint someone like Sri Srinivasan, who would be very difficult for the GOP to oppose given the lovefest that his recent confirmation to the DC Circuit proved to be, and who would help the court's diversity in a different way. Of course, that is a discussion that is tangential to the marriage equality issue.

[GRATUITOUS SPAM]

So the dilemma is whether to appoint a woman or an Indian? Why choose between these options when you can have the best of both worlds?

[/GRATUITOUS SPAM]

We could start a thread on judicial nominations issues. I am very interested in this topic - possibly more than any other. While I'm not sure it would lead to continually active discussions, it would be a good place to discuss SCOTUS nominations news when there is any, and the rest of the time, we could place links and commentary there.

ETA on Windsor, I wanted to note that I was baffled that the majority did not resolve the level of scrutiny that should apply to gay individuals or same-sex couples. Many people were hoping for an award of intermediate scrutiny, but given how hotly contested this issue was, I was surprised they didn't say one way or the other. Any thoughts on this, V?

[Voronwë the Faithful]

Scalia was baffled by that too. He had no problem with identifying what level of scrutiny he would apply (rational basis), but also seemed convinced that the majority was applying heightened scrutiny even though Kennedy carefully avoided saying so.

My guess is that he did so (avoided saying so) because if he had, it would have been clear that same sex marriage bans were in fact unconstitutional (as, in fact, Scalia himself said was the natural extension of the majority ruling).

I would love it if you started a judicial nomination thread. I also am interested in the subject, though less informed than you are. With regard to your comment, do you think that there is any chance that Obama would consider "the best-looking attorney general in America," (California Attorney General Kamala Harris, who was so named by the president, resulting in a minor uproar). She is a woman who is both African-American and Indian-American, and would bring a different perspective than most of the current justices, as a state attorney general and former District Attorney, instead of as judge. I think she would be interesting choice. (this comment could be moved to a different thread if we so decide).

[yovargas]

[ NEL!! I was wondering when you were gonna show up. ]

So the dilemma is whether to appoint a woman or an Indian? Why choose between these options when you can have the best of both worlds?

I would heartily approve.

[WampusCat]

I nominate nel for the Supremes.

[nerdanel]

yov and Wampus,

And here's something to truly love as we head into Pride weekend:

With one final sentence, the U.S. Court of Appeals for the Ninth Circuit just reinstated marriage equality in California this afternoon. The stay in the above matter is dissolved effective immediately. What that brief sentence means, in the words of our state Attorney General Kamala Harris: As soon as they lift that stay, marriages are on. The wedding bells will ring.

I'm looking back at the emotional post with which I started this thread on May 15, 2008, when the California Supreme Court first declared that our state constitution required marriage equality. It's been a long road from there to here these past five years, in which bigotry was first enshrined into our state's constitution and now surgically removed thanks to the dedicated efforts of so many thousands of advocates for equality across this state and country. So many of us were privileged to participate in the litigation that ensued, whether on behalf of the parties or amici. And now we party under the warm California sun and impossibly blue skies this Pride weekend, knowing that this third time at long last, wedding bells will continue to ring without interruption.

[Voronwë the Faithful]

nel, I'm so glad that you were here to make that statement.

I was pretty shocked to see that the Ninth Circuit had lifted its stay so quickly, particularly after they had seemed to indicate that they would have to wait the 25 day period until the SCOTUS decision was final. As a wise person indicated to me, not only does this result in marriage equality beginning immediately, it basically squashes any potential legal challenge that the California marriage equality opponents could possibly think to raise (though I have little doubt that they will try).

It hardly seems real. And it is hard for me even understand why it means so much to me that people now have a right to do something that I have chosen not to do. I guess it is because it is my choice, and damn it, it should be their choice as well.

And now it is.

[Frelga]

I'm very happy for the people who are directly affected, of course. I am also selfishly happy, as a member of a religious minority, that this country took another step away from defining what its citizens can or cannot do based solely on the religious beliefs of other citizens.


P.S.: nel for Supreme Court! But only after she finishes both terms of her presidency.

[JewelSong]

nel for Supreme Court! But only after she finishes both terms of her presidency.

Well, duh. That goes without saying.

[Túrin Turambar]

David Wong's 30-second guide on how the ruling affects you.

[Frelga]

David Wong's 30-second guide on how the ruling affects you.

They forgot "If you own or wish to own a business that provides wedding planning, festive venues, catering, cakes, flowers...."

[nerdanel]

Do I have to be President, or can I skip straight to the Supreme Court part?

An update: marriages have resumed at San Francisco City Hall, per a Facebook photo update from a friend of mine who works at the City Attorney's Office. It appears that plaintiff-couple Kristin Perry and Sandra Stier are being married there right now, surrounded by a crowd packed to the rafters. What a beautiful day.

[nerdanel]

http://blog.sfgate.com/stew/2013/06/28/ ... er-prop-8/

[River]

They forgot "If you own or wish to own a business that provides wedding planning, festive venues, catering, cakes, flowers...."

...this decision provides you with a broadened market. Let the good times roll!

The NY Times covers gay weddings in its Vows section on Sundays. My dad enjoys reading that section and I can't help but wonder if that didn't play a role in how his views evolved over the past decade or so.

[Frelga]

River, indeed. And since these types of businesses are more likely to be local rather than multinational, it also provides a boost to municipalities where they pay taxes. Everyone wins.


ETA: in another benefit for the Frelga family, now that gay men won the legal right to the word "husband", when my Mr. Frelga introduces a man as his partner, he no longer needs to specify "business."

[Voronwë the Faithful]

http://blog.sfgate.com/stew/2013/06/28/ ... er-prop-8/

Wonderful. They deserved to be first.