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

[Lalaith]

I absolutely agree, Alatar.

[Voronwë the Faithful]

River, yes, that is correct, I believe. The holding only applies to same sex marriages, not to civil unions, despite the fact that in states like yours, the latter is the only option for same sex couples. Which makes no sense. It, as Kennedy wrote, it is an equal protection issue, the protection to apply to everyone, not just to those who happen to live in states where marriage equality is recognized.

However, just thinking aloud, I think couples in your state could go to another state that recognizes same sex marriage and get married, and their marriage would be recognized by the federal government, even it isn't recognized by the state. Resulting, for instance, in a situation in which they would file joint federal tax returns, but separate state returns.

[Frelga]

You called it, V.

It'll be a mess. Progress is messy. Still, progress is being made.

Lali, that's a beautiful message. To me as a non-Christian it is much more consistent with what Jesus is quoted as saying than what I hear from many of his vocal self-described followers.

[River]

River, yes, that is correct, I believe. The holding only applies to same sex marriages, not to civil unions, despite the fact that in states like yours, the latter is the only option for same sex couples. Which makes no sense. It, as Kennedy wrote, it is an equal protection issue, the protection to apply to everyone, not just to those who happen to live in states where marriage equality is recognized.

However, just thinking aloud, I think couples in your state could go to another state that recognizes same sex marriage and get married, and their marriage would be recognized by the federal government, even it isn't recognized by the state. Resulting, for instance, in a situation in which they would file joint federal tax returns, but separate state returns.

Ah. Got it. That's annoying. It's so easy to throw together the legal bits of a wedding in Colorado. Most other places, you need three days to get the license and it has to be signed by a judge or religious leader. Here, you and your intended spouse show up (or you can use affidavits and proxies), get the paper and solemnize the vows all by yourselves that very minute if you so choose. At least, though, for gay couples who want marriage that will be recognized by the feds, they have an option. There's a lovely beach just north of Seattle that's, in my completely biased opinion, absolutely perfect for weddings.

I suppose taking down the marriage amendment in our constitution so that gay couples may enjoy a trivial wedding in their home state is now a task for the voters. Though, now that DOMA is down, do you think someone could take a state's "marriage is only for straights" constitutional amendment to federal court?

[yovargas]

Though, now that DOMA is down, do you think someone could take a state's "marriage is only for straights" constitutional amendment to federal court?

I'm not a lawyer but since V-dude pointed out the (confusing) link between the 5th and 14th Amendment in this being an equal protection thing, now that they've ruled separating straight and gay marriage violates equal protection, it'd seem to me very easy to make the case that some of the state laws are now violating the 14th:

"No State shall...deny to any person within its jurisdiction the equal protection of the laws."

[Voronwë the Faithful]

You would think so, but the court had two perfect opportunities to do so, and didn't. 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 California case is an example of two couples who did take a state's "marriage is only for straights" constitutional amendment to federal court, but the SCOTUS refused to make a ruling on that issue, one way or the other, on the technicality that the proponents did not have standing to appeal.

I think it is likely that the issue will reach the high court some time in the next few years, and they will be forced to address is straight on. In the meanwhile, more than half the country is likely to be able to go on denying a significant portion of its citizens equal protection of the laws with regard to marriage.

[yovargas]

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.

It makes sense to me, I think, to say that that case specifically dealt with the constitutionality of the federal approach to marriage. They just haven't had the case to rule on the state approaches yet, Cali technicality not withstanding. But when that clear-cut case does get there (as now seems utterly inevitable; I imagine lawyers in a lot of states are wanting to jump in on this today) it looks to me like they'd have very little wiggle room with today's decision setting this precedent.

[Voronwë the Faithful]

It makes sense to me, I think, to say that that case specifically dealt with the constitutionality of the federal approach to marriage. They just haven't had the case to rule on the state approaches yet, Cali technicality not withstanding.

Yes, that is quite well said.

But when that clear-cut case does get there (as now seems utterly inevitable; I imagine lawyers in a lot of states are wanting to jump in on this today) it looks to me like they'd have very little wiggle room with today's decision setting this precedent.

Well, they can avoid taking it on, simply by refusing to grant review of such cases. The one thing that is clear about today's cases is that they don't want to make a clear cut ruling one way or the other on marriage equality. I think they will avoid doing so for as long they can.

[Voronwë the Faithful]

River, yes, that is correct, I believe. The holding only applies to same sex marriages, not to civil unions, despite the fact that in states like yours, the latter is the only option for same sex couples. Which makes no sense. It, as Kennedy wrote, it is an equal protection issue, the protection to apply to everyone, not just to those who happen to live in states where marriage equality is recognized.

However, just thinking aloud, I think couples in your state could go to another state that recognizes same sex marriage and get married, and their marriage would be recognized by the federal government, even it isn't recognized by the state. Resulting, for instance, in a situation in which they would file joint federal tax returns, but separate state returns.

Revisiting what I wrote earlier, apparently it is not so clear. From what I have gathered, normally the IRS would follow the lead of the state in question, so that if the state did not recognize same sex marriage, a couple who lived in that state but were married in another state would not be able to file jointly. However, the Obama administration may be able to change that. So this aspect is apparently up in the air.

[elfshadow]

I was definitely thrilled with the court's decision to strike down DOMA! I only wish I lived in a state where it would make a difference. Amendment 43 (which bans gay marriage) was passed in Colorado in 2006 with only 53% of the vote. Seven years is a long time considering how quickly the demographics of this state are changing, and I think that Amendment 43 could easily get overturned by the voters in the next few years.



Voronwë, you might be able to say more about this. So the majority opinion of SCOTUS regarding DOMA was that it violated equal protection, as you explained above. But another argument that I had heard against DOMA was more simply that it violated states' rights. Do you think it is significant that the explanation given was equal protection rather than states' rights?

[Voronwë the Faithful]

Actually, the majority relied on a combination of equal protection and states' rights. I've only had a chance to skim the decision, but an important part of the holding is that states like New York (which was where Edith Windsor lives) granted these rights to their residents, and the federal government can not take them away. So it is an equal protection argument in that the majority is saying that the government can't treat some legally married couples differently than other married couples, but it is a state's rights/federalism issue in that it is up to the states, not the federal government, to decide who is legally married.

Does that make sense?

[yovargas]

Hmmm, if the decision was in part "that it is up to the states, not the federal government, to decide", wouldn't that strengthen the case of the state marriage bans?

[Voronwë the Faithful]

Yeah, that's the basic contradiction in the holding. The states' rights part favors the upholding of the marriage bans, but the equal protection part favors abolishing them.

Meanwhile, California is acting with all due speed. Gov. Brown has put out a statement ordering state officials to begin issuing marriage licenses to same sex couples as soon as the Ninth Circuit lifts its stay order, and Attorney General Harris has already sent a letter to the Ninth Circuit asking them to immediately lift the stay. Ordinarily, SCOTUS decisions do not take effect for 25 days, though parties can ask to have the ruling put into effect sooner. My best guess is that it will still be a little while before same sex marriages can happen here, but it should be too long.

Love the new name of the thread (which was not my doing).

[Primula Baggins]

I know whose it was!

We had a lovely evening watching MSNBC.

Seriously, seriously . . . our daughter is off welcoming one of her best friends home from college in England, a girl who's been her buddy since they were 6—and who has two moms, who have been the most thoughtful, loving, and conscientious parents we knew as Kate was growing up. Very matter-of-fact about it (this being Eugene, Oregon), but unquestionably wonderful.

I have no idea what they want from all this—it's not, and shouldn't be, any of my business—but I want them to have what they want. They've brought up a lovely and talented young woman (who is straight, just sayin') in a solid, secure family; one of them manages the biggest arts venue in our city; they are funny, warm, and welcoming, and their house is beautiful.

They should have the right to marry, if that's what they want. They earned it a couple of decades ago.

No, sorry: they earned it when they were born. Which I hope will be obvious soon.

[elfshadow]

Thank you, V. That is very helpful.

[elfshadow]

Sorry for the DP!

[Cerin]

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?

[Voronwë the Faithful]

Hi Cerin!

As I said further down the thread from the quote you cite, the majority decision appears to be a curious amalgamation of equal protection and states' rights. Justice Kennedy is careful not to directly state that states that ban same-sex marriage are violating equal protection principles, but as Justice Scalia points out in his blistering dissent, that idea is clearly implied in the majority opinion.

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

There can be, but the same constitutional principles are still supposed to apply above and beyond any other considerations.

[Ellienor]

I know a married couple (both women) who are both professors at CU, who have two wonderful kids (one of whom is a great friend of my son's). One of them has a great offer to leave CU for Stanford. I can't imagine why any gay couple would want to stay in a state that didn't recognize gay marriage after this decision. I hope they decide to stay.

That is a weird kind of mishmash ruling, V. I don't stay up on constitutional law (the changes in patent laws by the Supremes in the last few years are quite enough for me to keep up with, thank you!), but the state's law piece of the reasoning, as others have pointed out, seem to strengthen the line of argument that the Feds should stay out of this matter.

On the other hand, as the other cases work their way up thru the Appeals courts, likely those decisions will end up making the states' bans on gay marriage unconstitutional for violating the Constitution, domino-style, and if the Court refuses to hear those cases, then it's all good, right? What do you think of this scenario?

[Voronwë the Faithful]

I think that if the issue comes up before federal appeals court panels dominated by conservatives, the ruling will be in favor of upholding the bans, and if they come up before federal appeals court panels dominated liberals and/or moderates, the bans will be ruled unconstitutional. Eventually, there will be such a mishmash of rulings that the high court will have to take the matter of straight on. By that point, I think the wave of public opinion will have turned so much that they will have no choice but to rule that banning same sex marriage is unconstitutional. But of course we don't know for sure that the court will have the same members that it has now. 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.