Thursday, April 30, 2015

Sexy Issue

[Note:  I wrote this the day the case was argued.  Since then, I've heard others make similar claims.  So if you've heard it before, all I can say is you're about to hear it again.]

Obergefell v. Hodges was argued earlier this week before the Supreme Court.  The question is are states, under the Fourteenth Amendment, required to license same-sex marriages, and also are they required to recognize such marriages from other states.  Pundits are trying to read the tea leaves, and many believe Justice Kennedy will be the one to decide.  Perhaps the Court will punt, perhaps they'll go all the way.  I wouldn't presume to know.  I'm pretty sure same-sex marriage is the future, and I think the Justices know that, but I don't know if that knowledge will affect the case.

One thing I do know is many conservative are outraged at the thought the Court will find that there's a right for same-sex marriage.  To quote, for instance, the editors on National Review Online:

If the Supreme Court rules that all state governments must recognize same-sex unions as marriages, it will not just be saying that the view that marriage should be defined in law as the union of a man and a woman is wrong—and saying that without any clear constitutional warrant. It will be officially declaring that this view is irrational, in opposition to the country’s fundamental principles, and, quite possibly, bigoted. The Court should refrain from taking that reckless step.
When the Court ruled in 2013 that the federal government could not define marriage as the union of a man and a woman for the purposes of its own programs, Justice Kennedy’s opinion was full of references to the prerogatives of the states. If the Court now rules that states do not have the authority to define marriage as the union of a man and a woman, either, it will be clear that those references were for show, and that the Constitution is the plaything of a willful Court.
They're not happy, but I wonder if such a ruling wouldn't be good for conservatives.  For years the Republicans used (or tried to use) gay marriage as a wedge issue.  Now that it's clear a solid majority support same-sex marriage, and that we're not going back, the issue can be used against the GOP.
If the Supreme Court declares same-sex marriage is a right, it will mostly take this out of the public arena.  Yes, some of the conservative base strongly enough opposes the idea that certain candidates will still make a big deal of their opposition, and might even say they support a Constitutional Amendment to overturn the decision. (Attempting to pass such an Amendment would be quixotic, but the funny thing is if people knew what was happening today, they might have passed it when Bill Clinton was President.) But most of the candidates, especially once there's a general election, can simply say that, regardless of their personal feelings, the Court has spoken and it's our duty to follow the law.


Anonymous Anonymous said...

The opposition's best hope here is turn the issue into a Roe-type rallying point. However, the opposition to same sex marriage is probably demographically very different than the opposition to abortion. i.e. its dying off. They'd pretty do best to fulminate for few days and move on and relegate this issue to the laundry list of social mores that they think are wrong with country.

4:18 AM, April 30, 2015  
Anonymous Denver Guy said...

It's been a while, but my recollection of the ruling a couple years ago is that it was a violation of Equal Protection to define marriage such that some couples get gov't benefits and others do not (absent a compelling state interest in such discrimination, which was the important S.Ct recognition by Kennedy).

I do not think the ruling this year will find a "right to marriage" in the Constitution. It will confirm that States have to treat citizens equally when bestowing benefits. I maintain there is no obligation of the States to license any marriages, certainly not one found in the 14th Amendment.

So Colorado currently has marriage licensing for hetero couples, and civil union licensing for same-sex couples. Assuming these provide absolutely equal benefits to the couples, will the S.Ct rule that nevertheless, marriage licenses have to be available to gay couples? If so, there is little point in having the parallel systems. Could Colorado then discontinue issuing marriage licenses completely and issue Civil Union licenses to every couple seeking to get married? Will the S.Ct stress the semantical difference?

This, by the way, seems to me to be the simple solution to this non-issue. Every state and the federal government can recognize civil union couples, and grant them any benefits they want. And some state can even choose not to grant benefits to any couples, since we are not far from threesomes, foursomes, etc. noting it is unequal treatment to favor couples over groups who love each other just as much as any couple.

9:58 AM, April 30, 2015  
Blogger LAGuy said...

The Supreme Court has long recognized a right to marriage in its jurisprudence. To give one example, Loving v. Virginia in 1967: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

The only question here is whether this right must be extended to same-sex couples. There may be some technical issues as to how states will officially bestow this right, but it can't be wished away as a non-issue.

As to marriage licensing versus civil union licensing, there can be little doubt that the latter is a lesser thing. (As I've said before, if you don't think so, change the rules so that Jews, blacks and Irish aren't allowed the former and see what happens.) Allowing one group only the latter choice while others enjoy the former is a form of discrimination.

Whether or not its legal to discriminate based on the number of people in the marriage has already been adjudicated--the answer is yes. Whether this question will be reopened before the Supreme Court, and whether they will overturn precedent, remains to be seen.

12:48 PM, April 30, 2015  
Anonymous Denver Guy said...

A couple (or group) can get married without a State License. Are you suggesting that if Colorado stopped issuing anything called a Marriage License, it would be found to have deprived Colorado citizens of a Constitutional right? Licensing didn't even start in most States until after the 1850s (George & Martha Washington did not have a Marriage License, those hussies).

The Constitution guarantees a Right of Association, not a right to have the government encourage or subsidize any particular kind of association, of which marriage is just one sort.

It would be one thing if States had laws barring same sex couples from living together, having weddings and getting married under the auspices of any organization that conducts marriage. That is quite different from States being required to be one of those marrying organizations.

I agree, if the States decide they want to marry people (as they have done for 150 years or so), then they have to do it in a Constitutionally sound manner - ie. no discrimination among citizens without a compelling State interest. It's the same analysis as Brown v. Board of Ed. It's not that the government Constitutionally is required to provide public education, but if it is going to do so, it must be equally available to all citizens.

Quoting from a random web page I read: "The reason any license throughout history has been instituted was so that it could be denied to some people." The Federal Gov't passed the Uniform Marriage and Marriage License Act in 1923! Only then did all the States get on board and decide they had to be involved in the admitedly fundamental right of two (or more) people to declare themselves "married."

8:25 AM, May 01, 2015  
Anonymous Denver Guy said...

One more prediction. Cohabitation without license has already become so much the norm, at least until children are born, that I predict the Marriage License will whither away as an institution within 50 years. It costs money and offers dubious benefits, since every State recognizes common law marriages. To the majority among new generations that live together without a batting an eye will be joined devout Christians, Muslims and Jews who will get married i their Churches and skip the City Hall documentation.

8:29 AM, May 01, 2015  
Blogger LAGuy said...

I gave a long answer which seems to have disappeared, so we'll leave it at that.

9:13 AM, May 01, 2015  
Blogger ColumbusGuy said...

That's a rather cavalier statement, DG. Ohio has not recognized cohabitation since, I forget, possibly the late 1980's. Unless you were cohabitating at that time, you're out of luck if you're hoping to get some coin.

I wonder if anyone's ever litigated whether they have to recognize other states' common law ratifications . ..

4:29 PM, May 01, 2015  
Blogger ColumbusGuy said...

So I saw we had a spam comment a day or two ago, and just now for the first time in ages the "i'm not a robot" checkbox (genius) required a secondary verification.

Now I'm off to go see Age of Ultron

4:30 PM, May 01, 2015  

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