Same-Sex Marriage Update

[Soon]

[Corkey]

Just found out you can vote often.......clickety click........Againnnnnn!

[Soon]

How Will the Supreme Court Rule on Same-Sex Marriage?

Adam Winkler
Professor at UCLA School of Law



Wednesday's landmark decision by a federal court that California's ban on same-sex marriage violates the U.S. Constitution begins to pave the way for an eventual Supreme Court decision on marriage equality. How will the Supreme Court rule?

When the California case was first filed by the all-star legal team of Ted Olson -- who argued Bush v. Gore for George W. Bush and then became his Solicitor General -- and David Boies -- who, ironically, represented Al Gore in the disputed presidential contest -- the leading gay rights organizations, joined by the ACLU, came out against the lawsuit. They shared Olson and Boies's goal of securing marriage equality, of course, but they feared what the conservative Roberts Court might do. A strong Supreme Court decision against gay marriage would create a precedent that would take decades to undo. With our society moving generally in the direction of more tolerance for gays and lesbians, activists wanted to wait a few more years before bringing a case to the high court.

But gay rights activists may have been too pessimistic about the current Supreme Court. It's true that the Roberts Court is conservative and that several Justices are unlikely to be open-minded about same-sex marriage, including the four most right-leaning Justices: Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito. On the other side of the bench, there are four Justices likely to be favorable to Olson and Boies's argument that the denial of marriage rights to same-sex couples violates the Constitution: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (assuming she is confirmed).

As usual in the Supreme Court these days, the swing vote belongs to Anthony Kennedy. And there are several reasons to believe that Kennedy, though conservative on many issues, will vote with the liberals on this one. The Supreme Court has issued two major decisions dealing with gay rights over the past 15 years. Both decisions came out strongly in favor of gay rights -- and both were written by Justice Kennedy.

In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do."

These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage.

Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government. This has led him to vote in ways that liberals love and conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-versa -- such as his vote against government regulation of corporate speech. But it bodes well for the liberals in the same-sex marriage case.

Of course, no one can really predict what the Supreme Court will do. The same-sex marriage case will take years to reach the high court and, in the meantime, there may be turnover among the Justices. But so long as the question of marriage equality turns on Justice Kennedy's vote, Olson and Boies -- and those in the gay and lesbian community who are depending on them to win this case -- are in good hands.

[atomiczombie]

Originally Posted by Corkey

Just found out you can vote often.......clickety click........Againnnnnn!

Voting...voting...voting.....

[Gayla]

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples," Walker wrote.

[betenoire]

Congratulations, California.

I know it feels shitty that you all are having to do this state by state, but we had to do it province by province and I promise it works. I hate that it's taking this long, believe me. But you'll all get there.

Edited to add: The funniest comment I've read on the subject so far is "Somewhere in Alaska Sarah Palin is angrily reading the wrong words off of her hand."

[SuperFemme]

san luis obispo, ca.

we'll be on KSBY news at ten or eleven tonight, because I yelled "interview a family for gods sake"....and they did. Us. It was mostly our 17 year old daughter saying how happy today is, and when asked what she has to say to the people who feel sorry for her for having two moms? She said she feels sorry that they don't have the kind of love our family does: unconditional.

sigh.

[blackboot]

I just can't stop smiling. This is such a happy day.

[Gayla]

Originally Posted by SuperFemme

san luis obispo, ca.

we'll be on KSBY news at ten or eleven tonight, because I yelled "interview a family for gods sake"....and they did. Us. It was mostly our 17 year old daughter saying how happy today is, and when asked what she has to say to the people who feel sorry for her for having two moms? She said she feels sorry that they don't have the kind of love our family does: unconditional.

sigh.

I tried to watch the stream but I kept getting distracted by our news and I must have missed it.

[AtLast]

[QUOTE=betenoire;168352]Congratulations, California.

I know it feels shitty that you all are having to do this state by state, but we had to do it province by province and I promise it works. I hate that it's taking this long, believe me. But you'll all get there.

Edited to add: The funniest comment I've read on the subject so far is "Somewhere in Alaska Sarah Palin is angrily reading the wrong words off of her hand."[/QUOTE]

This is priceless!!

It sure is a great day here in CA!!! WOOT!!!

[Manul]

I have to love this headline from USAToday.

Prop 8 judge to religious believers: It's not about you

Included in the article:

You could summarize it pretty quickly, Walker seems to be saying, "'Believers, it's not about you."

The ruling says:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

Walker also writes,

Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

He cites the California constitution that...

[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

Walker examines about how several major religious groups -- Catholics, Mormons, conservative evangelicals such as the South Baptist Convention, Lutheran Church-Missouri Synod -- condemn either homosexual identity or behavior or both, citing documents from the Vatican to denominational resolutions.

But he spells out in all capital letters in the decision:

A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION...

California's obligation is to treat its citizens equally, not to "mandate [its] own moral code."

I'm sure those with strong fundamentalist religious feelings won't see the logic of the Judge, but it's a matter of equality under the Constitution, not about religion.