The Equal Protection Clause of the Fourteenth Amendment prohibits the sort of irrational discrimination sanctioned by Proposition 8 and other state statutes and ballot initiatives that prohibit same-sex marriage. It is an inescapable truth.
For all the bromides about pausing while the country evolves on same-sex marriage, or waiting until more “sociological information” (as Justice Kennedy so helpfully put it) is available, laws banning same-sex marriage give homophobia the force of law, and treat gays and lesbians differently than everybody else based on nothing more than an “ick” factor. It is animus at its most vulgar, and it is exactly the sort of animus that the Fourteenth Amendment, which states “No State shall … deny to any person within its jurisdiction the equal protection of the laws” proscribes.
Same-sex marriage bans are not long for this world, however. Much in the way that we scoff at the notion that mixed-race couples should be prevented from marrying in order to preserve racial integrity, so, too, will we laugh at the notion that same-sex marriage somehow undermines or degrades so-called “traditional marriage.”
At the outset, “traditional marriage” is an untenable concept. The Christian historical view of the one man, one woman “traditional marriage” is a social construct based upon outdated and gendered stereotypes of the purpose of marriage, which views men as breadwinners and women as homemakers and child-rearers. Social constructs, by their very nature, are given to change. The obsession with “tradition” simply allows a majority to withhold rights from a minority simply because “that’s what we’ve always done.” But, “we’ve been doing it this way for a while” is an absurd argument for continuing to treat gay couples as if they are inferior to straight couples just because.
Just Some Fuckhead
Is your ruling final, and more importantly, is it binding?
c u n d gulag
To Conservatives, since there were no gay people on the “Flintstones,” there shouldn’t be any on the “Jetsons,” either.
“The right of every American to first-class citizenship is the most important issue of our time.”
Yeah, I don’t really understand how this isn’t a slam-dunk equal protect case. The moral arguments have already been ruled impermissible, so all they are left with are arguments about what the role of marriage in society is. The only problem is that I have not seen a single argument advanced to deny gay people that doesn’t also apply to a portion of straight married couples. For instance, if you let infertile straight couples get married, you can’t turn around and argue that gay couples can’t because they can’t have children.
Seems pretty open and shut to me.
But gay people ARE free to get married! They just have to do it with someone of the opposite sex. No issue here.
Another GOPer Senator has come out for marriage equality: Kirk from Illinois.
Two more Dem Senators have also announced their support: Carper (DE), and Casey (PA).
When will the one true progressive Rand Paul join the 50 of his less progressive colleagues who already support it?
Alas, there are only nine people whose opinion on this topic matters, and you’re not one of them.
It’s also worth noting that if the legislative history of DOMA had been written with subsequent litigation in mind (which is a polite way of saying “scrubbed before publication”), it would be more difficult to make the case that DOMA was motivated by animus–and like it or not, there are respectable arguments that can be made in favor of DOMA if rational basis is the standard of review. Go back and listen to Clement’s argument about uniformity. You may not agree (I don’t, FWIW), but it’s not ridiculous.
… which doesn’t even fit the Bible, in which polygamy is very much the norm and neither the Old nor New Testaments ever raise a word against it.
Laughably, among the many “slippery slope” things conservatives argue that gay marriage will lead to (bestiality! Adult-child love!) they will occasionally mention polygamy. Pretty funny when you consider that the only groups that traditional religions were practicing that long before we “changed” the concept of marriage to what it is now.
Oh don’t worry. Fat Tony will find some tortuous twisting of the law to fuck over the queers. After all the Constitution says just what he thinks it says and nothing more.
It reminds me of the Cold War joke, that Americans had the right to call Reagan an asshole, and Russians had the right to call Reagan an asshole, therefore Americans and Russians had the same rights!
One other point: it’s obvious that there are not five votes to strike down Section 3 of DOMA on equal protection grounds. The best you can hope for is a plurality opinion based on equal protection and one or more justices concurring in the result based on the crackpot theory set forth in the libertarian law profs’ amicus brief.
@Chris: Oops. Got caught editing. I wanted to let the crappy argument stand on it’s own.
@gbear: I eternally curse the drafter of the wingnut email that pimps that argument.
Yeah, I don’t really understand how this isn’t a slam-dunk equal protect case.
Because ewww, buttsex. Apparently you are not aware of
all internet traditionsthat very important legal theory.
Another GOPer Senator has come out for marriage equality: Kirk from Illinois.
What’s it tell you that 50% of the Republicans in favor of it have brain damage?
@ranchandsyrup: It’s really popular with Republican state legislators. I know I’ve heard it from Bachmann when she was local (we were actually SO glad when she went to DC and couldn’t screw with state governance any more).
So, if it weren’t for the obvious animus, it would be harder to argue that animus was a motivating factor?
Name: burns, esq. Legal specialty: the bleeding obvious
I disagree with the statement that the “Christian” model of marriage is based on some 1950’s style division of labor with a “breadwinner” and a “homemaker.” This is simply totally ahistorical. The Christian model of marriage is based on a Jewish model but without divorce, is largely cut off from archaic notions of clan and tribe (because it was associated with voluntary choice and conversion from pagan to christian), and founded on notions of extreme sex and worldiness aversion. During the entire first couple of thousand of years of Christian marriage there would have been no real “division of labor” because in an agricultural and subsistence economy–a pre-industrial economy–women’s work was as signficiant as men’s work in most cases and the household itself was a tiny economy in which everyone worked.
Be that as it may I don’t understand why the “equal protection” argument isn’t a slam dunk given that several states now offer equal marriage. How is it possible that the entire argument that was floating around when Hawaii was considering legalizing gay marriage has dissapeared? IIRC that argument was a full faith and credit argument that it would be wrong for a person to be able to be legally married in one state and treated as unmarried in another. I don’t understand, since I”m not a lawyer, why no couples married in MA have sued states they moved to for refusing to recognize their marriage. I mean Muslim couples who are married in other countries don’t lose their marital status–though I know that secondary and tertiary wives do–when they move to the US.
@burnspbesq: No, it wasn’t scrubbed – both The Daily Show and Rachel Maddow ran clips of C-SPAN’s recording of what Barr, Hyde and others actually said on the Floor and the animus was self-evident. And, of course, Justice Kagan read into the record the actual words of the House Report, which caused audible gasps in the courtroom because of the obvious animus. They thought they scrubbed the record, but they did their scrubbing with 1996 Republican values and so quite a lot of plain old animus was left unaltered. The actual record is replete with “moral disapproval” which is animus.
ABL’s equal protection argument is correct – it’s a fairly straightforward case. The problem, as others have pointed out, is that the Justices no longer believe in equal protection notwithstanding what the 14th amendment says. Justice Thomas, in particular, is notorious for pretending that the 14th amendment is not even a part of the Constitution. And Justice Roberts, at the oral argument, said that he “understands” the equal protection argument, but that the other arguments are far more interesting (and apparently important).
It should be unanimous – like Loving v. Virginia – the tragedy is that it won’t be, and the outcome is actually still in doubt.
I live in Iowa, which, sadly, is not San Francisco, but same sex marriage has been legal for a couple of years now, and mostly my neighbors seem to have gotten used to it and accept it. Some of them may not like it, but they seem to have concluded it’s none of their business. Iowans are big on staying out the neighbors’ business.
@gbear: I saw a chucklehead on FB the other day extend that argument by saying that if teh ghey were allowed to married they would have more rights than him and that would be unfair because he doesn’t want to marry a man.
@aimai: I agree – there are so many Christian sects and denominations and so many different approaches to marriage that have evolved over time that it is inaccurate to state that there is a homogenous Christian view of marriage (or anything really). Many Christian denominations today allow gay and lesbian marriages; many formerly didn’t allow inter-racial marriages, many allowed polygamy for centuries, many viewed the whole issue as a property rights matter for centuries. There is no common position – there is a majority view, perhaps, but there have, throughout history, been minority views as well.
Oh, if only our national history included other examples of discrimination that we no longer abide, that judges and legislators could look at and see how absurd homophobin’ is…
@ranchandsyrup: Maybe it’s unfair to him because he can’t find a woman willing to marry him…
Given that something like 90%* of all Republicans appear to have some form or other of brain damage, it shows that having a healthy brain increases the chance of a Republican supporting marriage equality.
*Yes, like 83.6% of all statistics, this one was made up on the spot.
Chief Justice Taney. History can be unkind in judging the justices when their vote is against the tide of history. Chief Justice Taney may have been a distinguished jurist and voted in the majority (and wrote the decision) for the Dred Scott case based on some narrow states right argument but history has judged him to be just plain wrong regardless of his fancy legal analysis to justify his vote and decision. So, in these current cases before the Supremes, those who vote to uphold discrimination will be judged harshly in the future regardless of whatever justification they use to vote that way. Future generations will look at these cases on same sex marriage and sort of puzzle to themselves as to how anybody can be against it as the discrimination is so self evident. That will become the consensus view.
Just Some Fuckhead
He just hasn’t found the right man yet.
@Just Some Fuckhead: Bumperstickers are rarely wrong. A hard man is good to find.
Here is a question for the legal-minded among you. I had always (in my innocence) assumed that if a law was clearly unconstitutional for whatever reason that the SC had to declare it so. Now, Kennedy seems to be saying “yeah, it might be unconstitutional but I think maybe it should stand anyway because I think marriage equality might be bad” in some way we haven’t had time to fathom in the years since MA & some other states legalized it. Can they just do that?
It’s not even remotely straightforward if the standard of review is rational basis. Did you not listen to Clement’s discussion of uniformity?
Now, you can argue (and I think you’d be correct) that the uniformity rationale is nothing but a pretext–but that only matters if the standard of review is some form of heightened scrutiny.
Just Some Fuckhead
The guy who invented Christianity. No, not Paul, sorry, the guy he named it after. Christ. Yes, Christ.
Christ actually had some pretty strong words against divorce, (not that His opinion matters to Christians. But still.)
Sort of like Robert Moog?
Equal protection and full faith and credit are completely different concepts. The former refers to classifications among people and the latter to what each state is supposed to accord to the others’ laws.
The reason that equal protection is not a slam dunk is because, as Burnsy alludes, unless the law makes a “suspect classification” — i.e., classifies people on a basis the law recognizes as “suspect” — the law only has to pass the so called “rational basis” test, i.e., it has to be “rationally related” to a “legitimate” legislative objective. If the law does distinguish on a “suspect” basis, it invokes “heightened scrutiny”, which means it has to be narrowly tailored to achieve a compelling legislative purpose.
The problem is that the Supreme Court has never recognized sexual orientation as a “suspect” classification — and that is what Roberts was trying to avoid doing with his obnoxious theory about the so-called power of the gay lobby, or however he phrased it.
I believe there is a school of thought floating around that a plurality including Kennedy might strike down DOMA not on equal protection grounds, but as an infringement on fucking “states’ rights” — i.e., to define marriage, which is traditionally a state function. Seems to me that will open up a whole ‘nuther can of worms.
@Just Some Fuckhead:
Well, if He agrees with them, then his opinion is very important.
Just Some Fuckhead
@eemom: lolwut? Have you been not drinking?
The Other Bob
I cannot even stand the word “tradition” anymore. My mother always wants my family to do Y or Y activities because it is “tradition”. To me tradition is synonymous with old school thinking and bigotry.
But in Taney’s case, he didn’t make a narrow states’ rights argument. He made a broad, and sweeping states’ rights argument to try and remove any power from the legislature to stop the expansion of chattel slavery into the western territories. He also ruled that black people, slave or free, were not citizens and had “no rights which the white man was bound to respect”.
His decision went far beyond the issues presented in the case, and still stands as the most egregious example of judicial overreach in US history.
@Just Some Fuckhead:
That is the thanks I get for my scholarly exegesis of the legal issues? Sheeyit.
I didn’t say I AGREED with any of it.
@burnspbesq: Yes, 5 Justices could say that uniformity of treatment was the rational basis and that no heightened scrutiny is required. That would fit the precedents fairly cleanly as a legal argument. But the record clearly reflects that uniformity was not the sole basis and the record is replete with examples of “moral disapproval.” The record was not scrubbed – just like in Loving. Clement is making his argument with a record that does not fit his version of the facts (in Windsor). His argument fits the precedents, but DOMA and its legislative history doesn’t. Both Perry and Windsor are straightforward equal protection cases. And there are at least 4 Justices who would not merely apply rational basis. And gays and lesbians also meet the definition of suspect classes fairly easily (and it would be quite a stretch to maintain for all time that they don’t).
I’m surprised a straight married couple haven’t sued the California government to have their own marriage banned.
Why should gay people be given special treatment under the law?
Just Some Fuckhead
@eemom: I thought it was awesome! I almost even understood some of it. It’s almost like you are competing with your smart daughter now.
@eemom: I think the greater likelihood is that the plurality would likely do it on equal protection grounds and Kennedy would concur on state’s rights grounds. But Kennedy is obviously the senior Justice and would have first dibs on the opinion, so the internal political issue is can he tailor his draft opinion sufficiently to get the liberals’ votes and would he threaten to change his vote if he couldn’t get them to go along with state’s rights. Roberts would be senior to Kennedy, so he could try it too, and then the question would be would Kennedy go along with Roberts and would the liberals go along with that.
It seems unlikely that there are 5 votes for a Loving style opinion and a ringing landmark declaration (on either Perry or Windsor). So I agree with your implicit analysis that we’re likely to get some sort of limited mish-mash that, although semi-favorable for California and Ms. Windsor, doesn’t really solve much of anything.
As I posted elsewhere on the intertrons:
There is also a longer and therefor more nuanced Shorter Version here. My favorite part being:
Kind of off topic, but why in many states can former felons not vote? Does that not violate the Voting Rights Act at least, or the “cruel and unusual punishment” clause?
I understand that the right to vote isn’t specifically enshrined in the constitution like free speech, but it doesn’t seem right that after paying your debt to society, you shouldn’t be prevented.
@aimai: Point well-taken. I cut out a huge section of an earlier draft where I yammered on about the actual history of marriage versus what Christians want people to believe “traditional marriage” is, but I started to lose the plot and abandoned it. I reckon I ended up cutting out too much.
In any event, this article might interest you. It’s a fairly comprehensive description of the history of same sex marriage. I found it fascinating.
@Ben Franklin: Perfectly, beautifully put!
@gelfling545: SCOTUS can do whatever it wants, for the most part. Whether marriage equality stands or falls in all states but California, depends on the level of scrutiny applied. As to California, I don’t think Prop 8 passes muster under rational review, given the stated purpose of the ban — procreative responsibility — and that gay couples are already permitted to adopt.
Basically, I think it boils down to whether courts will buy a given state’s arguments about what the purpose for banning SSM is. That discussion at the hearing led to questions about whether states are required to grant full rights (marriage) if they’ve already granted some rights (adoption rights.)
Ultimately, I agree with whomever said we’re not going to see a Loving-esque landmark decision, although I sure would like to see one. I do think, however, we will get that ruling within 5 years, (probably.)
[Edited to fix weird autocorrect nonsense.]
Technically, isn’t the Prop 8 lawsuit claiming that it’s against California’s state constitution, not the US Constitution? I can’t remember anymore.
@Mnemosyne: They’re claiming it violates the U.S. Constitution. The underlying case in Cal Supreme Court probably argued Prop 8 violated both constitutions, but I haven’t read those court docs in a while.
The problem is, of course, that as gbear satirically pointed out, no one is actually banning anyone from doing anything based on their sexual orientation. This is usually intended as a ‘winning argument’ by the anti-gay side, but it’s actually a _losing_ argument, and in fact destroys their entire case.
The actual facts: Men, of any sexual orientation, are forbidden from marrying men. Whereas women, of any orientation, are allowed to marry men. Thus it is not the sexual orientation that makes the difference. It is the gender. Men are not allowed to do a specific thing (marry a man) that women are allowed to do.(1)
And gender _is_ a suspect basis, and required heightened scrutiny. It doesn’t matter if sexual orientation is a suspect basis or not.
1) And vis versa, but we stopped allowed ‘separate but equal’ a while back. Discriminating against both genders, and allowing them to each marry a different set of people, is still discrimination, just like allowing them each to attend a different set of schools would be.