Don't Panic! Gay Marriage Will Win

[W!nston]

Don't Panic! Gay Marriage Will Win
BloombergView | By Noah Feldman | April 27, 2015 3:32 PM EDT

EXPECTATIONS ARE RUNNING HIGH​

Predicting exactly what the justices will say at oral argument is a tricky business -- but predicting the reaction is more tractable. After the U.S. Supreme Court hears arguments in the gay-marriage cases Tuesday, you can expect a moment of serious anxiety among those who hope that the court is about to declare a fundamental constitutional right to marry the partner of one’s choice.

The reason is simple: Justice Anthony Kennedy isn't going to declare from the bench how he’s going to rule. At least some questions from some justices are likely to raise the question of whether the court should decide the issue now or wait for some unspecified time.

The result will be a feeling of letdown and nervousness among gay-marriage supporters. Because expectations are so high right now, anything short of a Supreme Court lovefest is going to produce a feeling of vertigo -- and the worry that perhaps, after all, Kennedy might not be ready to do the right thing.

In advance of that almost inevitable sentiment, let me reassure you -- or if you have the opposite view, let me deliver the bad news: Kennedy is going to write an opinion holding that what he calls the right to equal dignity requires states to allow marriages between two people of the same sex.

How do I know this? Because the decision will be the culmination of almost 20 years of preparation by Kennedy. He’s been developing gay rights in a series of decisions, each one a landmark in its own way. He can't turn back now, because he's already built the scaffolding.

If Kennedy’s long-term project isn't enough to convince you, consider this: Kennedy has at this point much to gain by creating the marriage right, and almost nothing to lose.

Kennedy's journey to this moment began in the 1996 case of Romer v. Evans, which arose from a ballot initiative that amended the Colorado state constitution to deny any “protected status” to gays or lesbians under state law.

When the amendment was enacted, it wasn't at all clear under existing law whether it violated the federal Constitution. On its face, the law seemed only to say that sexual orientation can be listed alongside race, religion or sex as prohibited categories of discrimination in Colorado. The Department of Justice under Attorney General Janet Reno and President Bill Clinton didn't even file a friend of the court brief arguing that the law was unconstitutional.

Kennedy, however, adopted a creative and far-reaching constitutional theory, first proposed by my Harvard Law School colleague Laurence Tribe (yes, the one everyone's mad at because of his attack on the Barack Obama administration's clean coal regulation). According to Kennedy, the law on its face violated the equal protection clause because it literally made it harder for gay people than for others to gain protection. The law, Kennedy said, was motivated by bare desire to harm an unpopular group.

Justice Antonin Scalia, in one of his many memorable turns of phrase, said that Kennedy's opinion had “mistaken a Kulturkampf for a fit of spite.” To Scalia, the political process was exactly the right venue for a cultural struggle over whether homosexuality should be thought of as morally acceptable. Kennedy fundamentally disagreed. He thought that the courts, not the legislature, should decide on the moral matter of the equality of persons, regardless of sexual orientation.

In 1996, this was a major step for a justice, particularly one appointed by Ronald Reagan. Seven years later, in Lawrence v. Texas, Kennedy took his approach one step further, holding that the “dignity” of “free persons” required a constitutional invalidation of laws against gay sex. This 2003 decision played an important role in shaping and consolidating broader American support for gay rights. Scalia, in dissent, called the decision “the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” But blaming law professors was beside the point: Public opinion was moving, and Kennedy was moving it.

After Lawrence, Kennedy waited a full decade until the 2013 decision in U.S. v. Windsor, which struck down the federal Defense of Marriage Act that had allowed states to ignore gay marriages performed in other states. Kennedy bided his time as the marriage equality movement grew. He didn't want to produce a backlash by announcing a fundamental right to marriage before the public was ready. And indeed, in the 2013 opinion, he held back from declaring such a right, although he could easily have done so. Kennedy wanted public opinion to go just a little bit further. As lower courts increasingly interpreted the Windsor precedent to require gay marriage, there has been a flight to religious liberty arguments by gay-marriage opponents -- but there hasn't been a major national upheaval.

So the time is right -- but that's not all. Kennedy has already paid a significant price among erstwhile conservative admirers for creating the jurisprudence of gay rights. The negative sentiment against him on these grounds can't get any worse. Indeed, his critics have already assimilated the expectation that he will declare a general right to gay marriage. Refusing to do so wouldn't win back any of his detractors.

Yet balking now after two decades would cost Kennedy the admiration of the liberals who have gradually accepted him as one of the most important liberal justices of the modern era, at least when it comes to individual liberty and equality. Liberals don't want a gay-marriage right to come “with all deliberate speed,” the way the court hoped desegregation would happen come after Brown v. Board of Education. They're ready now.

So keep calm and don’t carry on. Some momentary concern after Tuesday's oral argument is natural. But Kennedy is going to do the right thing. What choice does he have?

SOURCE

 

[Stonecold]

Thanks for this article, been waiting here in Texas for over 28 years to make our relationship legal and I agree it's coming but still getting nervous.

 

[W!nston]

Stoney... I felt tears welling up when I read this because there is such a ring of truth to it. Justice Kennedy... who would have believed Reagan's appointee would be the champion of Gay Equality back in the 80s? I remember his appointment hearings. And now... look who our defender is... it is almost too good to be true.

I was so inspired by this article. I feel almost giddy!

 

[Stonecold]

Do you think there is much of a chance of the surprise compromise?
The surprise compromise could answer "yes" to the second question but "no" to the first, meaning a state wouldn't have to grant gay marriages itself but would have to recognize those granted in other states. A couple in Georgia, for example, would have to take a trip to a state like California to get hitched, but then they'd enjoy all the rights of a married couple when they returned home.

A ruling like that could appeal to Justice Kennedy, who's a fan of both states' rights and gay rights. A compromise ruling could be considered pro-states' rights because it would let states have their marriages be recognized by other states while stopping short of forcing states to grant their own gay marriages.

While a compromise ruling might not sound dramatic, Winkler said it would still lead to "a lot of hand-wringing and the court will once again [have] advanced the cause of gay rights without going as far as it could."

http://www.businessinsider.com/this-surprise-could-come-out-of-the-supreme-courts-big-gay-marriage-case-2015-4#ixzz3YaKMKRa6

 

[W!nston]

Of course we'll have to wait and see but my gut tells me it will be a decision that will make Gay Marriage the law of the land.

During Obama's Presidency we will have achieved the right to serve openly in the military and the right to marry our same-sex partner.

Oh the times they are a changin'

 

[gorgik9]

There's another name that should be mentioned besides Justice Anthony Kennedy, and that's George Chauncey, professor of American history at Yale, who was the organizer and lead writer behind the Amicus Curiae Brief sent in to the US Supreme Court as a preparation for the hearings and rulings in Lawrence vs Texas in 2003.

If you read Justice Kennedy's majority opinion, you'll find that he quotes verbatim with approval again and again and again a certain text - George Chauncey's Amicus Brief.

And of course Chauncey was one of the expert witness in the California Prop 8 case in 2010.

So remember this name: George Chauncey.

And go get a copy of his great masterpiece "Gay New York 1890-1940"!!!

 

[flikhem]

Do you think there is much of a chance of the surprise compromise?

This is what the pessimist in me is saying. Somehow, the court will stop short of what we all want, guaranteeing another round of court battles.

 

[W!nston]

John Roberts says people want the ‘democratic process’ to decide gay m

John Roberts says people want the ‘democratic process’ to decide gay marriage. He’s wrong.
Washington Post | By David Fontana and Donald Braman | April 29 at 9:45 AM

Justice John Roberts​

On Tuesday, the Supreme Court spent two-and-a-half hours debating whether gay marriage was protected by the Constitution. The questions the justices asked reflected an underlying concern (by conservatives and liberals alike) that such a momentous change in how we define marriage should come through the democratic process, rather than through what Justice Stephen Breyer called “nine people outside the ballot box.” As Chief Justice John Roberts put it: “[p]eople feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

This is a familiar argument, one that has constantly featured in our constitutional debates. When the Court invalidated racial segregation in Brown v. Board of Education over60 years ago, a central criticism of the decision was that it came from those wearing robes. Over a decade ago, after the Massachusetts Supreme Judicial Court ruled in favor of gay marriage, President George W. Bush decried “activist judges” taking the decision away from the American people, and proposed a constitutional amendment to return the decision to the people. Indeed, eight years ago the book topping The New York Times bestseller list decried major constitutional decisions being made through the judicial process as a problem for our democracy. The author of that book was the then-junior senator from Illinois, Barack Obama.

But what if the American people do not mind that “nine people outside the ballot box” resolve this issue? What if the Court, in deciding these issues, doesn’t create a backlash against gay marriage or against itself?

We decided to test this question. We used the highly respected polling firm Polimetrix (now YouGov) to survey 2,000 Americans in late 2010. Our question: would you mind if the Court was the institution that decided that there is a constitutional right to same-sex marriage?

Half of those taking the survey read a newspaper story reporting that Congress had just passed legislation recognizing the constitutional right to gay marriage. The other half of those taking the survey read a newspaper story reporting instead that the Court had just recognized the constitutional right to gay marriage. These newspaper stories were constructed to be as realistic as possible, and almost all of those taking our survey indicated that they believed them to be authentic in debriefing.

What did we find? The balance of public opinion on the issue of gay marriage was largely unchanged no matter which institution resolved the issue. Those who supported marriage equality were happy when the decision went their way, and those who opposed it were upset. But on balance we found no evidence that (in the short term, anyway) anyone changed their mind because of how gay marriage became a constitutional right.

We also found that Americans did not turn against the Court as an institution just because it decided the case. If someone liked gay marriage, and was told that the Court had ruled in favor of it, they appreciated the role that a heroic Court played in protecting constitutional rights. If someone disliked gay marriage, and was told that the Court had ruled in favor of it, they resented the role that a meddlesome Court had played.

Notably, the same thing happened when the public was told that gay marriage had been created through the democratic process. If supportive of gay marriage, Americans appreciated the role that democracy played in vindicating the constitutional status of gay marriage. If opposed to gay marriage, Americans resented the role that political hacks played in meddling with a constitutional question.

Our findings should be reassuring to those on the Court worried that a judicial ruling in favor of marriage equality will provoke a more potent popular backlash against gay marriage and against the Court itself. A minority of the population (one that grows smaller every year) will be disappointed if the Court rules in favor of marriage equality. But the majority of Americans will think the Court decided the issue correctly, and will not mind that the Court is the institution that decides it.

To be sure, the preferences of the American people should not be the only source of authority in deciding how our country resolves important constitutional issues. But if the Court is worried that deciding in favor of gay marriage this summer will generate a uniquely negative reaction, empirical evidence suggests otherwise. Deciding controversial constitutional issues always elicits a reaction, and deciding these issues by judicial opinion is no different—and no worse. Americans do not fear those wearing robes, and so the Court need not fear resolving this issue for our country.

SOURCE

 

[gb2000ie]

It's kinda worrying that the chief justice of the supreme court does not understand what his institution was founded to do!

The whole point of the American justice system is that it is there to protect EVERYONE's rights, ESPECIALLY the rights of minorities. Majority rules is not a perfect system, that is why there are THREE branches of government in the US.

For a judge to think minorities should get their rights from the ballot box is frankly nuts. Utterly out of keeping with the principles the US was founded on.

B.

 

[gorgik9]

It's kinda worrying that the chief justice of the supreme court does not understand what his institution was founded to do!

The whole point of the American justice system is that it is there to protect EVERYONE's rights, ESPECIALLY the rights of minorities. Majority rules is not a perfect system, that is why there are THREE branches of government in the US.

For a judge to think minorities should get their rights from the ballot box is frankly nuts. Utterly out of keeping with the principles the US was founded on.

B.

Hear, Hear :agree:

 

[W!nston]

Federal judge who issued Kentucky gay marriage rulings dies

Federal judge who issued Kentucky gay marriage rulings dies
Associated Press | April 29, 2015

This June 2, 2012, provided by John Flavell shows U.S. District Judge John G. Heyburn II in Louisville, Ky. Heyburn whose ruling striking down Kentucky's ban on gay marriage led to an appeal heard this week in the U.S. Supreme Court died Wednesday, April 29, 2015. He was 66​

LOUISVILLE, Ky. (AP) — A federal judge whose ruling striking down Kentucky's ban on gay marriage led to an appeal heard this week in the U.S. Supreme Court died Wednesday. He was 66.

U.S. District Judge John G. Heyburn II died at home in Louisville surrounded by family after battling cancer for several years, the U.S. District Court for the Western District of Kentucky announced.

"John Heyburn untangled countless legal knots and delivered sweeping legal opinions on cases of incredible complexity over his more than two decades on the federal bench," U.S. Senate Majority Leader Mitch McConnell said in a statement.

Last year, Heyburn struck down Kentucky's ban on gay marriage and on recognizing same-sex marriages from outside the state. The rulings were reversed on appeal, but the Supreme Court heard arguments on them Tuesday.

Heyburn wrote that the ban on marriages performed elsewhere treated "gay and lesbian persons differently in a way that demeans them."

"Assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons," wrote Heyburn, an appointee of President George H.W. Bush.

"John had a gifted legal mind, but he also had the ability to see beyond the legal arguments and into the humanity of those who came before him," Senior Judge Charles R. Simpson III said in the statement from the court.

Heyburn graduated with a degree in history from Harvard, served in the Army Reserves from 1970 to 1976 and graduated from the University of Kentucky law school in 1976.

He is survived by his wife, Martha, and two sons.

SOURCE

I posted this because it seemed relevant in some way when I read it...

 

[W!nston]

Justice Ginsburg Eviscerates The Case Against Marriage Equality In Jus

Justice Ginsburg Eviscerates The Case Against Marriage Equality In Just Five Sentences
ThinkProgress | By Ian Millhiser | April 29, 2015 AT 8:54 AM EDT

During Tuesday’s marriage equality arguments in the Supreme Court, several of the Court’s conservative members suggested that same-sex couples should not be given equal marriage rights because these couples have not enjoyed those rights for most of the past. As Justice Antonin Scalia summed up this argument, “for millennia, not a single society” supported marriage equality, and that somehow exempted same-sex couples from the Constitution’s promise of equal protection of the law.

Not long after her conservative colleagues raised this argument, however, Justice Ruth Bader Ginsburg explained exactly why marriage was long understood to be incompatible with homosexuality in just five sentences:

[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.
There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.

Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles. According to Sir William Blackstone, an eighteenth century English jurist whose works are still frequently cited today to explain the common law principles we inherited from our former colonial rulers, “[t]he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.” As late as 1887, fully one third of the states did not permit women to control their earnings. And married women could not even withhold consent to sex with their husband until shockingly recently.
Under the common law, “by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” and this consent was something “she cannot retract.” The first successful prosecution in the United States of a husband who raped his wife did not occur until the late 1970s.

So American marriage law, and the English law that it was derived from, presumed that the wife was both financially and sexual subservient to the husband. In a world where marriage is defined as a union between a dominant man and a submissive woman, each fulfilling unique gender roles, the case for marriage discrimination is clear. How can both the dominant male role and the submissive female role be carried out in a marital union if the union does not include one man and one woman? This, according to Justice Ginsburg, is why marriage was understood to exclude same-sex couples for so many centuries.

But marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down.

SOURCE

Justice Ruth Bader-Ginsburg = Super-Hero

 

[gb2000ie]

I love Justice Bader-Ginsburg's ability to get at the real heart of a complex issue - an intellectual superhero indeed!

B.