Gay Marriage Gets Its Day in Court (Tomorrow!)

[Not a Tailor 1,370]

As the oral argument in the same-sex marriage cases nears, the smart money remains on a 5-4 decision upholding the right of individuals to be married in their own states and to have those marriages recognized by other states.

In fact, under the surface, a lot of the briefing seems to be less about whether the Court will affirm marriage equality and more about how. If history is a guide, the Court will speak in oblique, even oracular terms. A strong, clear opinion would serve the nation better.

Whatever the Court decides, religious and social conservatives plainly still hope to blunt the gay-rights movement. The Alabama Supreme Court has already ordered same-sex marriages halted, despite a federal court decision that the state’s ban is unconstitutional. A committee of the Texas House of Representatives recently approved a ban on state funds being used to perform same-sex marriages, court order or no. Legislatures in Texas, Alabama and Michigan considering “conscience clause” bills that would allow state-funded adoption and foster-care agencies to refuse same-sex couples who seek to adopt or foster.

And then there’s Louisiana.

Indiana and Arkansas may have backed down on their bills, but the Louisiana legislature has before it the “Marriage and Conscience Act,” which is explicitly, sweepingly designed to exclude and stigmatize same-sex couples. Under the Act, employers could still deny same-sex spouses marriage benefits; licensed professionals could refuse services to same-sex couples; state contractors could refuse to hire gays and lesbians; and even state officials—such as judges—could refuse official recognition to same-sex marriages.

Even lawmakers in Arkansas might have laughed at this bill, but Louisiana Governor Bobby Jindal is made of sterner stuff. Not even the prospect of disaster for Louisiana’s $5.2 billion tourist industry will deter him: “As the fight for religious liberty moves to Louisiana, I have a clear message for any corporation that contemplates bullying our state: Save your breath,” Jindal wrote inThursday’s New York Times.

So whatever happens with the Court in June, the struggle for gay and lesbian rights—even for basic humanity—will go on. A good Supreme Court opinion could make it less divisive.

In constitutional law, the reasons for a decision matter as much as the decision itself. If the Court decides states must perform and recognize same-sex marriages, the next question has to be why. The Court could hold that competent adults have a “substantive due process” right to be married. The Court has repeatedly held marriage to be a “fundamental right” that the state may not deny or limit without a “compelling” interest. Same-sex marriage bans would fall—because in essence they discriminate against marriage, not because they discriminate against gays and lesbians.

Or the Court could decide that same-sex marriage bans violate the Fourteenth Amendment’s Equal Protection Clause. Equal protection law operates by determining “classifications.” For example, Southern segregation “classified” on the basis of race—white people got certain rights and benefits that non-whites did not. Until 1996, the Virginia Military Institute “classified” by sex: men could be admitted, women could not. Same-sex marriage bans, thus, certainly “classify” by sexual orientation.

Whatever happens with the Court in June, the struggle for gay and lesbian rights—even for basic humanity—will go on. A good Supreme Court opinion could make it less divisive.

But finding the “classification” is just the beginning. Equal protection law then proceeds by applying a “standard of scrutiny.” Certain classifications, like race, are examined “strictly”—that is, with an assumption that they are unconstitutional unless the state gives a very good explanation. Others, like sex, are given “intermediate” scrutiny—courts recognize that there are a few good reasons to discriminate in these areas (e.g., certain physical characteristics), but not many. All other classifications are tested for a “rational basis,” lawyer-speak for “whatever, dude.” Consider this rule: “Tall people must stand in the back.” Why? The picture will look better. Whatever. Tall people don’t get “heightened scrutiny.”

What about sexual orientation? Is it more like race, or more like being tall? If classifications by sexual orientation demand “strict scrutiny,” a law like Louisiana’s will be pretty much dead on arrival. If, however, discrimination against LGBT people is more like discriminating against the tall, then every state discrimination—whether in adoption, foster-care placement, child custody, health care, employee benefits, and so on, will have to be litigated to determine whether there’s a whatever strong enough to allow it. It will be tedious; it will be demeaning; and (perhaps worse from the justices’ point of view) it will require the Supreme Court to resolve the issue over and over.

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[Pitaya 2,576]

~duplicate thread removed~

[We Keep Receipts 9,238]

Good Luck!!!

[Janelle2002 3,865]

Fingers crossed for you girl!!!

[Mr. Big Dog 10,747]

It's all over any way they want to look at it. The past is just that - the past. The forces of yesterday will be irrelevant - as they always have - in the end.

Who cares what they try to do in Louisiana, Texas or Alabama? These places will be swallowed up by the 21st century no matter how hard they try to pretend it's still the 1800s.

Time only knows one way - forward. And forward even this backward nation will go.

Edited April 28, 2015 by Mr. Big Dog

[Not a Tailor 1,370]

It's all over any way they want to look at it. The past is just that - the past. The forces of yesterday will be irrelevant - as they always have - in the end.

Who cares what they try to do in Louisiana, Texas or Alabama? These places will be swallowed up by the 21st century no matter how hard they try to pretend it's still the 1800s.

Time only knows one way - forward. And forward even this backward nation will go.

I care what they do in Texas, since me and my wife are stuck there another three years.

That's the thing. Those of us who have to live in those places that are stuck in the past are affected.

[Mr. Big Dog 10,747]

I care what they do in Texas, since me and my wife are stuck there another three years.

That's the thing. Those of us who have to live in those places that are stuck in the past are affected.

I hear you. On a personal level, I am sure it matters a big deal to those affected and I truly hope for you and others that the discrimination will end sooner rather than later.

But I was talking big picture. And as far as big picture is concerned, it matters none what happens in Texas in the here and now.

[Not a Tailor 1,370]

I hear you. On a personal level, I am sure it matters a big deal to those affected and I truly hope for you and others that the discrimination will end sooner rather than later.

But I was talking big picture. And as far as big picture is concerned, it matters none what happens in Texas in the here and now.

The big picture is great but it's hard to give two rats' patooteys about the big picture when you don't have basic rights where you're about to live.

[Mr. Big Dog 10,747]

The big picture is great but it's hard to give two rats' patooteys about the big picture when you don't have basic rights where you're about to live.

No argument from me. Difference is that it's all academic for me but very personal for you.

[GandD 5,966]

Fingers crossed for all the homosexual couples out there.

[elmcitymaven 9,711]

As yet another armchair constitutional scholar, I am SO excited to see how this goes. I'm thinking 6-3 in June.