Marriage Equality and SCOTUS

The fight for marriage equality is progressing each day. This week, the Supreme Court is hearing arguments about the constitutionality of two gay marriage laws: the federal Defense of Marriage Act (DOMA), United States v. Windsor, and California’s Proposition 8, Hollingsworth v. Perry. The hearings have the potential to help shape gay marriage equality laws for a long time to come. As the Supreme Court hears arguments on gay marriage rights laws this week, Gay Dating Blog decided to compile a list of their favorite 100 marriage equality blogs. Some of you might be interested in checking it out:

The Human Rights Campaign’s push for marriage equality swept social media Tuesday as the Supreme Court heard oral arguments in the Proposition 8 case. The social campaign launched around 1 p.m. EST Monday afternoon, when the organization changed its Facebook profile picture from its iconic blue and yellow logo to the current red version.

“Red is a symbol for love, and that’s what marriage is all about,” Human Rights Campaign spokesperson Charlie Joughin told on Tuesday. “We wanted to give people an opportunity to show their support for marriage equality in a public and visible way.”

Needless to say, this is a momentous week for LGBT rights and the Supreme Court.  I can’t say that I understand all of the arguments that were presented yesterday, and I doubt I will understand all of the arguments presented today.  Most of the analysts of yesterday’s arguments before the Court seemed to place Justice Kennedy as the major swing vote.  Here are some of the arguments presented, as reported by The Huffington Post:

“Can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?” Sotomayor asked Charles J. Cooper, who is representing supporters of Prop 8’s ban on gay marriage. “Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?”
And when Cooper said Prop 8 supports “responsible procreation,” Kagan pushed back. “If you are over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage. So why is that different?”
Yet the liveliest moments came when Scalia asked Ted Olson, President George W. Bush’s solicitor general and the lawyer for the two same-sex couples challenging Prop 8, “When did it become unconstitutional to exclude homosexual couples from marriage? 1791 [when the Bill of Rights was ratified]? 1868, when the 14th Amendment was adopted?”
Olson pushed back against Scalia’s originalist view, asking him in return, “When did it become unconstitutional to prohibit interracial marriages?”
“It’s an easy question,” Scalia said. “At the time that the equal protection clause was adopted. That’s absolutely true. But don’t give me a question to my question.”
“There’s no specific date in time,” Olson ultimately answered. “This is an evolutionary cycle.”
Alito’s issues with Olson’s argument were more pragmatic. “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet,” Alito said. “On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”
Yet Ginsburg noted that one of the decisions Cooper was relying on in the case was written in 1971, when “same-sex intimate conduct was considered criminal.” In that case, Baker v. Nelson, the Supreme Court dismissed a Minnesota man’s attempt to marry his male partner as lacking a “substantial federal question.”
Kennedy also said he was “trying to wrestle with” whether a same-sex marriage ban should be viewed as a gender-based classification, calling it a “difficult question.”
By the end of the argument, it was clear that Kennedy believed the Prop 8 proponents had standing to sue, that same-sex couples had the right to marry and that such a right extended to all states. Yet that option — making same-sex marriage a federal constitutional right — compelled him to search for an escape hatch.

It is unclear from yesterday’s hearings how the Court might rule on Prop 8.  It remains entirely possible that the Court might dodge the substantive question or rule on narrow grounds that only affect the State of California and not the rest of the country.  Whatever it does, the rights of hundreds of thousands of families will be profoundly affected by whatever the Supreme Court rules on two marriage equality cases it is hearing this week.  Without question, what the Court rules will make a difference in the short-term legal and political realities faced by same-sex couples.

But when Martin Luther King spoke about justice rolling “down like water and righteousness like a mighty stream,” he evoked the long arc of history that ultimately bends toward equal treatment and fairness for all.   The Supreme Court may hurry the pace of justice or slow it down or dodge it altogether, but the sanctioning of anti-gay bias and legalized discrimination against gay families will someday soon be nothing more than an ugly relic of the past.

A decision in the case, Hollingsworth v. Perry, is expected by July.

About Joe

I began my life in the South and for five years lived as a closeted teacher, but am now making a new life for myself as an oral historian in New England. I think my life will work out the way it was always meant to be. That doesn't mean there won't be ups and downs; that's all part of life. It means I just have to be patient. I feel like October 7, 2015 is my new birthday. It's a beginning filled with great hope. It's a second chance to live my life…not anyone else's. My profile picture is "David and Me," 2001 painting by artist Steve Walker. It happens to be one of my favorite modern gay art pieces. View all posts by Joe

17 responses to “Marriage Equality and SCOTUS

  • naturgesetz

    "'Red is a symbol for love, and that’s what marriage is all about' ….” That's the fallacy. The state shouldn't care about peoples' love lives. The state shouldn't be in the business of authorizing or approving peoples' love lives. The reason the state should care about marriage is that the couple may procreate children — who are the society's future.

  • Jay M.

    The reason the state should care about marriage is because they have conscripted the word and enacted 1138+ federal laws (not to mention the countless state and local laws), that give rights, benefits, and privileges to married couples – as it should regardless of sex. If you only allow couples who can procreate to marry, then infertile couples, older couples, couples who choose NOT to have children (how are you going to figure that one out?!), etc. should not be allowed to be married, yet we have no prohibition on that marriage. It's not the government's business to worry about who procreates, it's their business to give equal rights and protections to all citizens unless there is a very strong, compelling governmental reason not to. And there aren't very many of those, and none of them have to do with who can and can't have children. Either remove the word "marriage" from all the laws, remove that term from everyone who is currently civilly married (and call it whatever you want – civil unions, pick a term), and then the churches can use that term exclusively.Peace <3Jay

  • Jay M.

    By the way, if anyone can find any instance in any governing document of our land that says "the government shall make sure new babies are born regularly so there is a future for society", I'd love to see it.Peace <3Jay

  • naturgesetz

    "By the way, if anyone can find any instance in any governing document of our land that says 'the government shall make sure new babies are born regularly so there is a future for society', I'd love to see it."Oh come on, Jay! It's not necessary for the blindingly obvious fact that without children being born and growing up we're finished to be spelled out in a governing document, any more than it is necessary for it to be spelled out that it's a good idea to prevent people from killing each other unjustifiably.As for the infertile — we are discussing two classes of couples: same-sex, and opposite-sex. The former can never procreate children, the latter sometimes can. IOW, children only come from the second class. The state could become more intrusive, with intrusive fertility tests or arbitrary age limits (on women, anyway), but the understanding that marriage requires male and female excludes no potentially fertile couple without such intrusion or arbitrary limits.Who procreates is much more of a concern to the state than who's in love, since the children need to be educated and socialized.And equal rights apply to the equally situated, but since same-sex relationships are inherently (not just circumstantially) infertile, they are not the same as (i.e., nor equal to) opposite-sex ones. And since the relationships are not the same, the couples have no claim to equal treatment.

  • Jay M.

    Yes, but it is NOT a government objective! And it IS spelled out that murder is illegal – for anyone to kill anyone unjustifiably. As for infertile couples, so "sometimes" is good enough? Shouldn't they then only be allowed to sometimes get married? Who decides who gets to? But how about the government get out of the bedroom entirely, and out of people's love lives, too. And children can be educated just fine with single parents and same sex couples, as more and more research shows – in fact, the latest research shows that children in same sex parent homes fare just as well as children in opposite sex parent homes. You're just repeating old, worn out, religious based arguments that do not hold water in secular society. Pro-creation is NOT the end-all, be-all to being in love and being allowed to share in all the 100% civil rights that married couples to day are allowed to share. NO ONE is suggesting that ANY church has to perform a religiously based marriage ceremony for anyone they do not choose to – the Catholic church will not marry me to a woman as an example, because I am not a member of that church. I wouldn't ask them to. But if I love Adam or Steve, the GOVERNMENT should allow me to share all the rights that every other married couple does. Oh, and then I can adopt a child who will have TWO married, committed parents, though born of a heterosexual couple (or single mother) who for whatever reason does not want to or cannot raise them (and DIDN'T abort them), and continue your apparent assertion that government's reason for allowing marriage at all is to raise new children. Oh, I can also use a surrogate. If I were female, I could use a sperm donor. So the whole "procreation" argument simply is NOT a compelling reason to deny civil rights to any citizens. I realize most of your arguments are based on your closely held, and heartfelt devotion to the Church, but in civil law, we as LGBT citizens are simply being discriminated against and there really isn't a good reason for the government to do that.Jay

  • naturgesetz

    Sure sometimes is good enough.Show what is specifically religious about my argument. Your mere assertion that I'm making a religious based argument is insufficient. Where did I reference God, scripture, church, or anything else religious? I'm getting pretty annoyed that you continue to repeat this falsehood.

  • Jay M.

    Because your arguments that procreation is a necessary outcome of marriage seem to be based on what I found here (though I knew this before I looked up this particular reference):"But sexual pleasure within marriage becomes unnatural, and even harmful to the spouses, when it is used in a way that deliberately excludes the basic purpose of sex, which is procreation. God’s gift of the sex act, along with its pleasure and intimacy, must not be abused by deliberately frustrating its natural end—procreation.". Thus, same sex marriage is wrong unless kids can pop out whenever. It's kind of tiring to see arguments couched in religiosity called "not religious".

  • Jay M.

    Feel free to be annoyed. Oh yeah, my cite is specifically referring to birth control but same sex marriage is the ultimate birth control, I'd say, so it certainly applies. And I cannot believe that you said "Sure sometimes is good enough." How can you possibly justify that?!?!?!?! Please back that up with who gets to decide when, and what tests will be required before someone can get married?!?!?!?! And is "yeah, maybe she'll get preggers if screwed enough" enough of a test?Jay

  • Biki

    Most of the arguments against same sex marriage are built on a bedrock of what Christianity believes is "moral" behavior. I have no quarrel with people citing their religion as why they wont partake in certain activities, or actions. However, I feel that the Christians are forcing those Americans who are not of their faith to abide by their rules of morality. To my thinking if our government is not allowed to make a state church, nor tell churches how to conduct their affairs, then it behooves churches to stay out of the business of government. Religion should only concern itself with the actions of their flock. What other religions do, believe is of no concern to other religions. We dont see Jews nor Muslims trying to outlaw the sale of pork products. Nor to close down all business from sundown on Friday until sundown on Saturday for Shabbot. Why do Christians feel the need to legislate their rules into our country's laws? Naturgesetz you are right, never once did you reference scripture or the bible. However, all of your arguments are what the Catholic Church has to say about equal marriage. So, on that score you are being a trifle hypocritical.Legalizing marriage equality hurts no one, period. It wont hurt any church, any married couple, any children. All children require to grow up to be happy, healthy and good citizens is care and love from a parent. Two parents are ideal, but a great single parent is fine as well. Attempting to tie marriage to procreation is nothing more than a straw man argument. The Catholic Church has tied procreation to marriage, and recently evangelical churches are following in the Pope's footsteps. Oh and you are worried about humans dying out due to same sex marriages? Currently the world's population stands as 6,973,738,433. I think we're safe from extinction.

  • Jay M.

    EXCELLENT COMMENT BIKI!!!!!!!!Thank you!Jay

  • naturgesetz

    Jay, the fact that somebody else made a religious argument about procreation as the purpose of sex (not marriage) does not mean that my argument on different terms is religious. You lose that debate. And by the way, I didn't say "that procreation is a necessary outcome of marriage." I said that the potential of procreation is what makes it relevant to the state and sets it apart from same-sex relationships. And as for "sometimes is good enough" what I meant is that there is no necessity that every couple produce a baby every time they have sex. And where do you come up with the idea that somebody has to decide or that there has to be a test. If you had understood what I was saying, you'd have realized that I am saying that the understanding that marriage is a male-female institution obviates any need for tests and somebody deciding. You express it extremely crudely, but it is that underlying aptitude for procreation that is all the "test" we need with regard to the sex of the parties to marriage. Or, more precisely, it is the absolute impossibility of procreation by same-sex couple that is an inherent difference between them and opposite-sex couples and makes it impossible for them to marry in the same sense as opposite-sex couples do.

  • naturgesetz

    Biki, to suggest that the understanding of marriage as a male-female institution is matter simply of Christian morality ignores the fact that in non-Christian societies around the world and throughout history the same understanding has existed. SInce this understanding extends well beyond the confines of Christianity, to claim that it is a matter of Christians imposing their morality is simply incorrect.And if you find my arguments equivalent to what the Catholic Church has been saying on the topic, it is because in discussing matters of public policy with a wider audience than it's own members, the Church does not rely on religious arguments either, but on simple facts and reason.And as for tying procreation to marriage, again, it's not something that is exclusive to the Catholic Church and Evangelicals. It goes back at least to Aristotle.And I did NOT say I was worried about humans dying out. So the current world population is irrelevant to this discussion.

  • Dean

    It is NOT impossible for a gay couple to create a child, due to surrogates or sperm donors. Nowhere in all of these arguments is there any mention that a child must be a product of the same two humans that create him. If the state wants family units that produce a child, a couple can do just that. Your argument does not hold water. Do yourself and everyone else a favor and read the amici curiae briefs from the real professional groups such as the American Psychiatry Association and the American Sociology Association. They pretty much prove that children raised by gays are in all ways equivalent to those raised by their natural parents.By the way, I believe that we have way too much population now for the sustainability of our natural resources, so maybe the government's interests would be better served by a zero population growth for a while. Gay families can certainly help out there.

  • naturgesetz

    Surrogacy and sperm donation are most certainly NOT the couple producing a child. They are one member of the couple and a third party producing a child (possibly with the intervention of a fourth person, a lab technician).Supposed overpopulation is an argument against marriage and procreation, not an argument for gay marriage. Gay marriage does nothing to solve the "problem."

  • SEAN

    naturgesetz – Mariage is not about love, that is a modern evolution, mostly in western civilizations. Marriage as always been about power, ownership and wealth as well as survival. In the late American 1800's a man in his 30-40's marring a 14 year old girl was normal because women tended to die early (mostly in child birth) and men needed wives to take care of their house and children and to have more children to work the farm. Today we call this perverse.No one is legally married until the government says so, no matter which church you get married in, and gives you that little piece of paper. Only then are you considered married in the government's eyes and thus entitled to not only have children but tax breaks, death benefits, citizenship and close to 1000 rights not involving children but protecting two people who have chosen to take advantage of one of the government's many entitlement programs. But then again, there is no law that says you must be married or a certain age (young or old) to procreate. And you can go to a drive-thru window in Vegas and earn those rights – if you are male and female.Using your argument we could make many more arguments (just as silly and stupid as yours) like:- Straight people should not be able to have children because they suck at it.- We could end abortions because 98% (and I'm being conservative**) of abortions are had by straight women.- 98% of the runaway children are from straight parents.- 98% of the kids in foster care are from straight parents.- 98 % of the prison population was born of straight parents.- 98% of the kids abused and murdered and sexually assaulted are by straight parent.- close to 100% of women raped are by straight men raised by straight parents.- 98% of the gay children are born and raised by straight people.**I acknowledge that LGBT people make up less than 10% of the population and only a very small % of them choose to reproduce biologically, so 2% is actually a large number then is probably accurate.

  • Pier Roberto Giannelli

    Because of the length of the previous comment, I will allow myself the pleasure of posting this one:In the United States, the constitutional guarantee of freedom of religion protects both sides of the marriage-equality controversy: The religious groups that condemn homosexuality cannot be forced to perform or recognize homosexual marriages; but groups that accept homosexual marriage are free to do so—and the state, which may not establish (impose) any religion, may not impose either a ban or an acceptance. So why the storm of anti-gay bigotry? Irrational hatred fortified by a fundamental mistake: In addition to the prejudice absorbed from the environment, ignorant people think that “marriage” is “matrimony,” which is for them a divine dispensation. Marriage is not "matrimony." "Matrimony" is a Christian religious concept that is not shared by all persons–not even all Christian churches admit it as a "sacrament"–and AS A RELIGIOUS CONCEPT, IN A DEMOCRACY IT CANNOT LEGITIMATELY BE IMPOSED BY SOME CITIZENS ON OTHERS. (For that matter, neither can religious sexual taboos such as “sodomy”—not legitimately.) Marriage is a civil contract registered with and regulated by the state. It is a kind of incorporation. MARRIAGE EXISTED LONG BEFORE AND OUTSIDE CHRISTIANITY, in order to ensure the orderly transfer of property—through inheritance, among other things. That is why all countries require a state-issued marriage license and a divorce decree that assigns the assets. Religious ceremonies are optional in all except the few that are theocracies (the Islamic countries that brought us the Taliban and al-Qaeda) or borderline theocracies with a state religion (the Catholic military dictatorships of Franco’s Spain and most Latin American countries not long ago). Through marriage, the state recognizes the common rights and obligations of two people (two, except in the Bible, Islam, a few other non-Western societies, and until recently Mormonism). These include the right to shared property and the obligation to honor debts contracted by the couple. Tax concessions and other privileges conceded by the state are also included. These and the other rights and obligations of marriage are civil rights and obligations, and therefore they may not be denied to any adult citizens capable of functioning as members of the state. Governments at all levels must cease to deny to their citizens the full exercise of this right. Furthermore, marriage is not a States’ right—something the court overrides at will anyway. In 1954 the Supreme Court, to integrate the schools, arrogated to itself the previously recognized right of the States to regulate and control education. IN 1967 THE COURT, IN ORDER TO LEGALIZE INTERRACIAL MARRIAGE, SUPERSEDED THE STATES’ RIGHT TO REGULATE MARRIAGE. So there is nothing constitutionally inviolable about the States’ right to regulate marriage. Strangely, Judeo-Christians try to tie marriage to reproductive capacity. Yet all kinds of organisms reproduce and bring up their young without benefit of marriage—and many marriages are sterile. Is God not doing His job? AND THE SUPREME COURT’S DECISION TO LEGALIZE ABORTION IN ROE VS WADE BREAKS ALL LEGAL LINKS BETWEEN MARRIAGE AND REPRODUCTION. Furthermore, the societies which have most forcibly linked marriage to reproduction did so in order to maintain population numbers as a prop for their imperialist expansion—the ancient Hebrews, the Roman Empire and Nazi Germany—all notoriously non-Christian.

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