Obergefell v. Hodges presented a lot of back and forth on the issue of same sex marriage at the Supreme Court on Tuesday, which was deeply divided as it heard oral arguments in the case.  Obergefell v. Hodges is a case which is likely to go down in the history books alongside other landmark civil rights cases.  This one centers on two questions: first, whether there is a constitutional right to gay marriage, and second, if not, whether states that have bans on gay marriage have to recognize gay marriages performed in other states where it’s legal.  The first question seems to be the most important, and I have tired to sum up the SCOTUS proceedings as succinctly as possible, but it turned out to be way too long.  The best summary I’ve read is from a New York Times article by Adam Liptak.  I read over numerous articles about the proceedings, and the one by Liptak seemed to be one of the best. So if you want to read about the arguments presented and the questions asked by the justices, then click on the link for the Liptak article.

Let’s face it, most of the arguments against same sex marriage are ridiculous.  Opponents argue that same sex marriage:  would destroy the institution of marriage, Marriage is for procreation, polygamy would follow, voters should be able to decide, tradition and history, and religious concerns.  Those six are the arguments that opponents seem to want to argue most.  So let’s look at these one at a time.  Same-sex marriage will have no effect on opposite-sex marriage.  Quite simply, it will not affect a heterosexual marriage in any way.  Also, if marriage is for procreation only, then barren couples should have their marriages invalidated, no one should be able to marry a post-menopausal woman, and couples who do not want children should not be allowed to marry.  However, opponents of same-sex marriage still say that LGBT couples should not be allowed to marry because the marriage cannot produce children.  What is equal about that?  As for polygamy, one of the arguments is for religious freedom, but we deny those whose religion allows polygamy to practice it.  So why not allow polygamy?  I want only one man in my life, but if you’re Islamic or Mormon, you should have the right to have multiple wives, as long as one woman can also have multiple husbands.  Furthermore, if voters were able to decide all issues about equality, the American South would still be segregated, interracial marriage would still be illegal, and sodomy would still be illegal (and for those who would think that it should still be illegal [none of my readers I hope] then please remember that most sodomy laws included any sex that was not in the missionary position).  The American voters cannot be trusted with protecting the rights of minorities, which is why we have the 14th Amendment.  As for tradition and history, if we are speaking strictly of American history, numerous Native American tribes allowed not only for transgender but also for same-sex marriage.  It is only the introduction of Christianity that those tribals laws changed.  Which brings me to my last point, America’s Founding Fathers believed in separation of church and state, therefore religious need not apply.

Preliminary indications are that the Court is ready to rule 5-4 in favor of marriage equality. However, while even those opposed to marriage equality concede as much, a win — especially one in which marriage equality is affirmed as a civil rights issue — is no guarantee.  The Supreme Court will release its ruling on Obergefell v. Hodges in June. While there’s reason to be optimistic, the oral arguments did not provide a clear win for the LGBT community, and even if marriage equality is affirmed, it could be affirmed in narrow terms that aren’t transferrable to other LGBT cases involving discrimination unrelated to marriage.  My greatest fear is that the Supreme Court will issue a very narrow decision in favor of same-sex marriage and those states who allow same-sex marriage will be allowed to continue and other states will be forced to wait, therefore, having two Americas, one with LGBT Americans having marriage equality in some states and others states where LGBT Americans will be deemed second class citizens.  I personally am hoping for a broad opinion written by Ginsberg.



Probate judges in Alabama’s 67 counties were caught in a tug of war between state and federal courts over the issue of same-sex marriage on Tuesday and were ordered by the state supreme court to stop issuing the licenses.

As of noon Wednesday, the Human Rights Campaign had identified 42 counties it said had stopped issuing same-sex licenses as of today. Another 19 never issued the licenses and the status of six — Bullock,  Crenshaw, Lamar, Macon, Monroe,  Sumter — is unclear, the advocacy group reported.

“Because of the Alabama Supreme Court’s willingness to ignore their oath of office, all Alabama’s counties appear to be in conflict with the intent of a federal court order,” HRC Legal Director Sarah Warbelow said in a press release. “This is only a temporary setback on the road to equality, but the message it sends to LGBT Alabamians is despicable.”

Same-sex couples will likely appeal up to the U.S. Supreme Court if necessary to block the latest state supreme court ruling, said Ben Cooper, chairman of Equality Alabama. “It’s important to understand that this is not nearly the end of this,” he said.

The federal government does not take kindly to states getting in the way of their rulings.  Attorney Shelley Bilbrey notes, “You know at some point, we end up with the George Wallace standing at the school-house door situation.”

Let’s say a probate judge wants to issue a same-sex marriage license. Let’s say they want to side with the federal court and ignore the state ruling.  Why not?

Bilbrey answers, “They would be fearful of a contempt citing.”  She’s saying probate judges could be jailed for following a federal court decision.  You can see why they may be reluctant to issue the same-sex marriage licenses, no matter their own feelings on the legality or morality of the issue.  Bilbrey adds, “Regardless of what he believes about the issue, I certainly would never want to risk a contempt citing.”  Because the ruling itself shows the state supreme court is using a lot of the powers at their disposal.  As for contempt, Bilbrey assesses, “I wouldn’t doubt that they would exercise that, since they’ve already taken this drastic measure.”

The Republicans in our state house and in our courthouses promised smaller, less intrusive government, but right now they are trying, instead, to write our marriage vows for us. And that love and cherish and sweet old fashioned notion stuff just got struck right out.  The Alabama Supreme Court has ruled that love is not a factor in marriage.  Have they decided to send us back hundreds of years to arranged marriages, when we weren’t able to choose who we’d marry?  No, these perverse judges instead want to look in our underpants to make sure our parts are compatible for baby-making.  

MONTGOMERY, Ala. (AP) – Alabama’s chief justice built his career on defiance: In 2003, Roy Moore was removed from the bench for defying a federal court order to remove a boulder-size Ten Commandments monument from the state courthouse.

On Monday, as Alabama became the 37th state where gays can legally wed, Moore took a defiant stand again, employing the kind of states’ rights language used during the Civil War and again during the civil rights movement.

He argued that a federal judge’s Jan. 23 ruling striking down the Bible Belt state’s gay-marriage ban was an illegal intrusion on Alabama’s sovereignty. And he demanded the state’s probate judges not issue any marriage licenses to same-sex couples.

“It’s my duty to speak up when I see the jurisdiction of our courts being intruded by unlawful federal authority,” the 67-year-old Republican chief justice of Alabama’s Supreme Court said in an interview Monday.

His stand did not succeed in stopping gay couples from tying the knot. And it brought forth another round of criticism of Moore at a time when the movie “Selma” has reminded many Americans of Alabama’s segregationist defiance of the federal government in the 1960s.

Richard Cohen, president of the Southern Poverty Law Center, a major civil rights organization, branded Moore the “Ayatollah of Alabama.”

Moore’s office in the Alabama judicial building is down the street from the Alabama Capitol, where in 1963 Gov. George Wallace promised “segregation now, segregation tomorrow, segregation forever” and vowed to fight what he portrayed as the tyranny of the federal government.

“Moore is using the religion issue to further his political career, just as Wallace used the race issue to further his,” Cohen said.

The Southern Poverty Law Center filed a judicial complaint against Moore accusing him of trying to incite chaos at the probate courts.

On Monday, some counties refused to issue same-sex marriage licenses or shut down their licensing operations altogether, citing confusion about what they should do. But at least seven of Alabama’s 67 counties issued gay marriage licenses, and same-sex couples were wed at courthouses in such places as Birmingham and Montgomery.

In Birmingham, the Jefferson County Probate Office said it had dispensed more than 250 licenses to same-sex couples by midday, with people still arriving. Only three opposite-sex couples had received licenses.

Some of the gay couples who had been lined up for hours exited courthouses to applause, delighted by the opportunity to exchange vows.

“I figured that we would be that last ones – I mean, they would drag Alabama kicking and screaming to equality,” said Laura Bush, who married Dee Bush in a park outside the courthouse in Birmingham.

Alabama Gov. Robert Bentley, a Republican and a Southern Baptist, said he believes strongly that marriage is between one man and one woman. But he said the issue should be “worked out through the proper legal channels” and not through defiance of the law.

Bentley noted that Alabama is about to be in the spotlight again with the 50th anniversary of the Voting Rights Act of 1965, which was passed after civil rights marchers were attacked and beaten in Selma, Alabama.

“I don’t want Alabama to be seen as it was 50 years when a federal law was defied. I’m not going to do that,” Bentley said. “I’m trying to move this state forward.”

After the Ten Commandments dispute made a national figure out Moore, he ran unsuccessfully for governor in 2006 and 2010. In 2012, he returned to the high court when he got elected chief justice. There has been speculation he might make a third run for governor.

He has been one of the state’s most outspoken critics of gay marriage and homosexuality. Moore called homosexuality an “inherent evil” in a 2002 ruling in a child custody case. On the campaign trail in 2012, he said that same-sex marriage would bring about the “ultimate destruction” of the country.

Late last month, U.S. District Judge Callie Granade ruled that the state marriage ban was unconstitutional and – in a later clarifying order – said probate judges have a legal duty under the U.S. Constitution to issue the licenses. On Monday morning, the U.S. Supreme Court refused to block the start of gay marriages in Alabama.

Moore bristled at the comparison to Wallace and disputed the notion that same-sex marriage is a civil rights issue.

“This is not about the right of people to be recognized with race or creed or color. This is about same-sex marriage. It is not the same subject,” he said.

“Eighty-one percent of the voters adopted the Alabama Sanctity of Marriage Amendment in the Alabama Constitution. I think they want leaders that will stand up against an unlawful intrusion of their sovereignty, and that’s what we’re seeing.