If the Court rules in favor, and I suspect they will, it’s gonna be hard to concentrate on work down here in Texas with all the wailing and gnashing of teeth going on.
I’m surprised the second one is considered a Fourteenth Amendment question, and not a Full Faith and Credit Clause one.
Does it? Can the Supreme Court make a ruling in a case that it originally refused to hear?
No, that wedding would stand. When Proposition 8 was first passed, it was challenged in California’s court system as somehow violating another part of the Constitution, and the State Supreme Court ruled that, while Proposition 8 was valid on State grounds, all same-sex marriages that had taken place up to that point in California remain valid, and never mind that the state Constitution now specifically says that they are not recognized.
It is roughly equivalent to if the U.S. Constitution were to be changed to ban handguns, but the U.S. Supreme Court were to say that the ban does not apply to guns already owned.
We are operating on the hypo that the Court rules rather broadly that states can prohibit SSM. Prop 8 passed in 2008. By this ruling, Prop 8 is a valid exercise of state power. Lower federal court rulings to the contrary are wrong as a matter of law.
I am not referring to the marriages performed between the original CA ruling and the passage of Prop 8. You are correct that whether to recognize those marriages or not was within the purview of the CA Supreme Court. The post Prop 8 marriages would have no basis upon which they could be recognized.
From the date it became effective until the present, Prop 8 is the final word of California law on the subject. The question becomes, by what authority was the marriage license issue to Mitch and Cam? It couldn’t be California law because the county clerk had no valid authority by which to issue the license except an (now, under the hypo) erroneous district court decision holding the law violated the federal constitution.
I agree it makes no sense, but that is Justice Kennedy. Read Romer v. Evans. How does it make sense that a state can pass a law not extending civil rights protection to sexual orientation, but a constitutional amendment doing such a thing is impermissible?
The ruling basically said that it causes gay people to have to climb an extra hurdle (amend the constitution) whereas other groups needed to only pass a law to get these protections. Scalia dissented and said that is the nature of constitutional amendments: they always make change more difficult to the aggrieved group.
If I would like to commit polygamy in Arizona, as an example, I must now try to amend the Arizona constitution instead of getting a law through the legislature. But, that’s Kennedy at work.
I don’t see how, given Windsor and the decisions already filed, it could go any other way, but then again, I’ve been wrong a lot about US politics.
Romer doesn’t distinguish statutes from constitutional amendments, though, and from the decision, it looks like, if Colorado had passed legislation banning localities from adding sexual orientation to their antidiscrimination ordinances, that would also be unacceptable under Justice Kennedy’s opinion. What makes it unconstitutional isn’t the form that the prohibition takes, it’s that it doesn’t serve a legitimate state interest and is just a way to show “animus toward the class that it affects.”
Texas is always on the verge of seceding to begin with. If this is the last straw that pushes them to take the final step, that will be a silver lining to the case.
Animus was a large part of it, I will concede. But equally important was the constitutional amendment and the unequal hurdle it posed on gay people attempting to get civil rights.
If Colorado had passed a state law imposing such a ban on localities, would it have been struck down? In many states, localities have no power whatsoever to pass laws related to that subject. It would seem silly that a state could strip localities of the power to pass civil rights laws entirely, but to strip them of the power to pass only certain civil rights laws would be unconstitutional.
Where do either the decision or the dissent distinguish between a law and an amendment, the way you’re suggesting? I don’t see that in my reading, but I fully concede I may be missing something.
And, as to your second point, I don’t think that that’s a silly distinction. It’s constitutional, for instance, for a state to say that its citizens can’t drive on public roads without first passing a test and getting a license authorizing them to use a motor vehicle, but do you think the courts would find a law constitutional if it said specifically that black citizens can’t drive on public roads without first passing a test and getting a license authorizing them to use a motor vehicle? The Romer decision rests on the doctrine of equal protection, and fundamental to that doctrine is that the law can’t distinguish between separate groups of people without cause.
[QUOTE=Kennedy, Romer v. Evans]
In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. **To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution **or perhaps, on the State’s view, by trying to pass helpful laws of general applicability.
[/QUOTE]
(bolding mine)
As to your second point, race is subject to heightened scrutiny. Kennedy has had three chances to apply heightened scrutiny (Romer, Lawrence, Windsor) with Scalia in dissent chiding him for not having the courage to do so, but for whatever reason, he will not. He has used a bastardized version of rational basis review in saying that animus alone cannot serve as justification for a law.
Romer–voters passing a new law saying gays cannot get special protection=animus.
Lawrence—the legislature passing a new law banning sodomy only for homosexuals (admitting that sodomy laws applicable to all had historical precedent) was simple animus against homosexuals and not rooted in history.
Windsor—passing a federal law refusing to defer to states who chose to grant marriage rights to homosexuals=animus.
So now we come to this case. How does the animus definition fit when all the states are doing is simply keeping the same definition of marriage that existed since statehood, the founding of the nation, the founding of the English common law, at back to the roots of civilization?
Arguably, the laws in Romer, Lawrence, and Windsor were passed solely as a “fuck you” to gays. If you pick, (hypothetically) an Ohio marriage law that has been in force since 1878, nobody can say with a straight face it was passed as a result of animus to gay people. You might say that the 2004 constitutional amendment was a result of animus, but not the pre-existing law: that was the reason for my distinction.
Ha ha—with a straight face. Anyway, the recognition of gays as anything other than mentally ill straight people is a recent phenomenon, and therefore I don’t think you can argue that gays, as a class, were a possible consideration in the past.
Other threads have pointed out to you the flaw in your assumptions about the “original definition” of marriage, so I won’t go back into that here; you’re correct as far as the institution has existed since the foundation of the USA, so it’s moot.
I just noticed that the Solicitor General is filing an amicus brief on behalf of the respondents. I thought Obama’s position (the latest one) was that he was in favor of same sex marriage and support STATES in their enactment of these laws.
IOW, he went from opposition of SSM to support of SSM with the stipulation that states should enact these laws. Has he “evolved” again and now believes that states MUST enact these laws lest they be in violation of the United States Constitution?
I mean, I understand that people can change their mind, but there is a vast gulf between: 1) I oppose laws supporting X, and 2) Any law in opposition of X is in violation of the basic rights of free people. What a difference 3 years makes.
The SG and POTUS personal position on the issue don’t necessarily change the duty of the SG to approach an issue from a position he’s required to defend.
Not saying that this is the case, but it has happened in the past.
I just wanted to say that I haven’t heard this particular phrasing before, but it is pitch perfect.
You’re nearly two years out of date. He has said he thinks there is a strong equal protection claim against gay marriage bans as early as March 2013.
Which is not to say that his public pronouncements have not been purely political. I think it’s possible he has been sincere, but more likely is that he has believed in a constitutional right to gay marriage all along and lied for political advantage.
It astounds me the depth of the supposed “evolution” in Obama’s position on this issue. Has any other President in history favored laws opposing a certain thing at one point in his term, but then later in his term “evolved” to believe that laws in opposition to that same certain thing would violate the United States Constitution?
On the constitutional issue the Court will face: rational basis (likely). Obama opposed SSM. I’m sure he considers himself a rational person. Does he attribute his prior opposition to SSM as a lifelong fit of irrationality? He was able to meaningfully articulate his position for years. Now it has changed.
So, he could at least understand the other position, even though after long thought, he now has changed his mind. But he goes the extra step and (at least through the SG) will argue that this opposition has absolutely no legitimate state interest.
That is breathtaking to me: the idea that once you change your mind on an issue, the change is so drastic that you believe the people on the other side, the side you were just recently a member of, has a position that is so cuckoo-bananas as to make it not worthy of a legislative debate. IMHO, Obama is being inconsistent here. The fact that he struggled with the issue means that reasonable people (unless he wants to concede that he is an unreasonable person) can have differing opinions on the issue.
And reasonable differing opinions equals rational basis which would uphold these laws.
And if you go way back to his first political campaigns, and take his statements at 100% face value, he’s evolved in multiple directions, as he supported same-sex marriage in 1996 before opposing it in the 2000s.
Although why you would take a politician’s word at face value is beyond me.
I don’t think it’s likely to be analyzed under traditional rational basis. More likely is so-called “rational basis with teeth” from Romer, or some form of heightened scrutiny if not strict scrutiny. Under any of these tests, it is perfectly possible for the legislature to have a rational basis for wanting the law, but for the law to fail.
Not really.
For one, the more obvious conclusion is that he was insincere, not inconsistent. He knew standing up for gay marriage meant political harm with little gain, so he didn’t do it.
But even if you take his “evolution” at face value, it doesn’t follow that he should think the laws survive rational basis review. It depends on what belief, precisely, evolved. For example, if Obama previously and incorrectly thought that, say, studies showed that same-sex couples’ children do worse in school, and he “evolved” by looking closer at what we know about same-sex parenting, then believing now that the law would fail rational basis wouldn’t be inconsistent at all. Indeed, there are lots of factual predicates about which he might have evolved. Maybe he didn’t realize the extent to which civil unions were still legally and necessarily different from marriages in every state because of federal rules, and so changed his tune about civil unions being sufficient. Lots of possibilities, none of which means the laws would survive rational basis review because of “reasonable disagreement.”