What private legal mechanism exists to allow a gay man to keep the love of his life in the country after his visa expires?
Yes, sodomy laws do cut it, you can’t just handwave them away. Even if I were to accept this kind of weasel, it’s still never been illegal for black people to have sex with each other, and Jim Crow existed just as much for gay people and continues to exist. It has been (and still is, in some cases) legal to discriminate against gay people in employment and housing well after civil rights legislation made it illegal to do those things to blacks. Gay people have been routinely targeted for violence, beatings and lynchings at least as often black people (and not infrequently BY black people) since at last reconstruction, and gay people suffer the unique indignity of having the state refuse to give their committed relationships the rights and protections that everyone else, of any race, is permitted to seek.
You can’t back up your claim that there is a “palpable difference” in the levels of discrimination against black people and GLBT people. The difference doesn’t exist. The forms are sometimes different, but not the levels, and while the US has, to a large extent (if not completely) outgrown its racial bigotry (at least on an institutional level), homophobic bigotry is still accepted as a perfectly valid viewpoint.
Believe it.
In Virginia, to pick my home state as an example, Va Code § 54.1-2986 provides:
Obviously an existing advance directive has sway, but that’s my point: merely by marrying my wife, she automatically assume the highest possible status (absent a court-appointed guardian) for making medical care decisions if I cannot. Note that in Virginia, no same-sex couple can possibly reach that goal unless they carefully, and expensively, prepare an advance directive, and even then may be challenged by a parent, sibling, or child.
Izs there a way this can go directly to the Supreme Court, it just seems like such a waste of time to wait. 
Flip rattling off?
How about 1,138 distinct benefits gained by getting married strike you for being flip (as counted by the General Accounting Office)?
Here’s a few:
Assumption of Spouse’s Pension
Automatic Inheritance
Automatic Housing Lease Transfer
Bereavement Leave
Burial Determination
Child Custody
Crime Victim’s Recovery Benefits
Divorce Protections
Domestic Violence Protection
Exemption from Property Tax on Partner’s Death
Immunity from Testifying Against Spouse
Insurance Breaks
Joint Adoption and Foster Care
Joint Bankruptcy
Joint Parenting (Insurance Coverage, School Records)
Medical Decisions on Behalf of Partner
Certain Property Rights
Reduced Rate Memberships
Sick Leave to Care for Partner
Visitation of Partner’s Children
Visitation of Partner in Hospital or Prison
Wrongful Death (Loss of Consort) Benefits
Were you napping during that whole Terri Schiavo thing?
Yeah, I know, but I don’t think there is a way to circumvent the Circuit appeal. The SCOTUS will use that court’s ruling as the basis for theirs.
This is going to take years-- no way around it.
You see, it’s flip because it’s something he doesn’t have to think twice about. There’s nothing so cozy as entitlements you take for granted…
Another story:
I have two lovely co-workers who are lesbians. Last year, one of them got pregnant via a sperm donor. When she was due, she was able to take time off via the Family Medical Leave Act. Her partner was not, because she legally wasn’t the mother and couldn’t become the mother.
Yes, she could adopt the child, and of course that’s what she did. But you’re not allowed to initiate adoption proceedings until a child is born, and it takes about six weeks for the proceedings to go through. So she wasn’t eligible to take any time off until six weeks after her daughter was born.
Meanwhile, another unmarried straight couple with the same employer got pregnant. The male had no trouble getting time off under FMLA, even though there was no proof that he was the father.
Eventually the non-bio-mom was able to convince HR to let her take sick leave for several weeks–but she really had to fight for it, and by law they didn’t need to let her do it. They could have denied her any time off until her daughter was legally her daughter.
Same-sex marriage would have easily resolved this situation: were the two of them able to get married, she absolutely would have been the girl’s mother at the moment of birth, and would have been eligible for FMLA leave.
What say you, Rumor? Was this situation fair? Was it just? Did this couple have equal access to the law?
The Ninth can refuse to hear the appeal, in which case the Prop 8 people could appeal straight to SCOTUS.
So what is the standard by which the Ninth decides whether they want to hear the appeal or not?
I would guess whether they think there is a reasonable possibility of the appeal succeeding.
Yes, but do they base that simply on the court record and written decision or can they consider other factors? I mean the Pro prop 8 folks put up a terrible case (probably because they have a terrible case) where their own witnesses often worked against them.
On the record. Appeals courts don’t consider new evidence even during a trial*, let alone when determining whether to hear the case in the first place.
*Except in very limited circumstances.
ETA: Unless you’re including existing case law in “other factors”.
I wonder if politically the Ninth could refuse to hear it (or for that matter the SCOTUS). I suppose if they both punted that would be the best outcome for Prop8 folk (well…best would be the SCOTUS ruling in their favor so second best). If they dodged it then SSM would become legal in California but remain up-in-the-air everywhere else.
I suspect sooner or later the SCOTUS would be forced to deal with this. Even if they dodged it this time around I presume another circuit ruling differently than the Ninth would force the issue to the SCOTUS.
Considering that the previous makeup of SCOTUS was slightly less conservative, I don’t see the current incarnation upholding this ruling.
It’s also by no means a sure bet that the Ninth Circuit will uphold the decision. The Ninth Circuit is huge, and has 20-something judges. Unlike the other federal circuits, they don’t sit en banc; they take it in turns to hear cases, in groups of… 12, I think.
That means that on any given day, it can be the most or least liberal of the federal appeals courts.
Even if (against all evidence) sexuality were a choice, it could still be a protected class, subject to more than rational basis review. After all, religion is a choice, too, and we protect that.
But religion is special…
It is since it is explicitly protected in the constitution.
I dunno…the analysis I have heard so far suggests you have Kennedy as the swing vote and his past votes (such as in Lawrence) suggest he might tip the balance in favor of SSM.