Saturday, August 23, 2014

 

The Tide Continues to Roll In


A Federal district court judge, Robert L. Hinkle, has joined 19 prior decisions in Federal court by finding Florida's constitutional and statutory bans of same-sex marriage or recognizing same-sex marriages legally entered into in other jurisdictions to violate the 14th Amendment's Due Process and Equal Protection clauses.

As always, I think the stories of the plaintiffs in these cases are the most important part. There were many plaintiffs in this case but one story stands out:
Arlene Goldberg married Carol Goldwasser in New York in 2011. Ms. Goldwasser died in March 2014. The couple had been together for 47 years. Ms. Goldwasser was the toll-facilities director for Lee County, Florida, for 17 years. Ms. Goldberg is retired but works part time at a major retailer. The couple had been living with and taking care of Ms. Goldwasser's elderly parents, but now Ms. Goldberg cares for them alone. Social-security benefits are Ms. Goldberg's primary income. Florida's refusal to recognize the marriage has precluded Ms. Goldberg from obtaining social-security survivor benefits. Ms. Goldberg says that for that reason only, she will have to sell her house, and Ms. Goldwasser's parents are looking for another place to live. Ms. Goldberg also wishes to amend Ms. Goldwasser's death certificate to reflect their marriage.
It takes a particularly virulent bigot to deny Arlene Goldberg the relationship of marriage with Carol Goldwasser.

Judge Hinkle begins his opinion with this:
The founders of this nation said in the preamble to the United States Constitution that a goal was to secure the blessings of liberty to themselves and their posterity. Liberty has come more slowly for some than for others. It was 1967, nearly two centuries after the Constitution was adopted, before the Supreme Court struck down state laws prohibiting interracial marriage, thus protecting the liberty of individuals whose chosen life partner was of a different race. Now, nearly 50 years later, the arguments supporting the ban on interracial marriage seem an obvious pretext for racism; it must be hard for those who were not then of age to understand just how sincerely those views were held. When observers look back 50 years from now, the arguments supporting Florida's ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held.
He is right, of course. The tide of history will wash any "controversy" about same-sex marriage away, leaving nothing but a few ripples in the sand, just as it did with interracial marriage. I think he put it particularly well when he said:
The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down. Liberty, tolerance, and respect are not zero-sum concepts. Those who enter opposite-sex marriages are harmed not at all when others, including these plaintiffs, are given the liberty to choose their own life partners and are shown the respect that comes with formal marriage. Tolerating views with which one disagrees is a hallmark of civilized society.
There are no losers here, only winners who deserve to win.

Comments:
One thing that strikes me is that even if there are 19 federal judges, some of which may be worth listening to, who have come to this decision, their decisions may be worth nothing, even if joined with 4 justices of the Supreme Court, and whoever else, if 5 justices, who also may be worth listening to, decide otherwise.

One may point to Brown v. Board of Education for a reasonable decision contrary to what everyone was saying. Yet, somehow ...
 
this decision, their decisions may be worth nothing, even if joined with 4 justices of the Supreme Court

Not quite true. There is a tide in the law too. These decisions will remain on the books and, just as was the case with Bowers, they will eat at the consciences of future judges and, even if stopped today, eventually equality will out.
 
It seems clear now that the lower courts have decided that opponents of same sex marriage don't have a leg to stand on. I presume the question now becomes, what will the Supreme Court decide at some point in the future. How long can they dodge the issue?

The problem is that it is hard to find any kind of effective case that opponents could bring before the Court. Allowing same-sex couples to marry does not in any way prevent heterosexual couples from continuing to get married as before. Nor is that right harmed in any observable way.

I suppose that religious groups could argue that, similar to the Hobby Lobby case, forcing them to provide the service of marriage to same-sex couples is a violation of their First Amendment right to the free exercise of their faith which forbids homosexual relationships. To me, even that argument is fatally undermined by the fact that there are a number of other Old Testament prohibitions which they ignore without a murmur.

It seems more likely that opposition is based on two emotional responses: first, an instinctive revulsion against the very notion of same-sex relationships and, second, a fear that the churches authority (and privilege) to grant formal recognition of marriage is being undermined.

Going back to the Hobby Lobby decision, I just noticed
this ruling in California. Is that going to stir things up again? Do insurance companies have First Amendment rights?
 
I presume the question now becomes, what will the Supreme Court decide at some point in the future. How long can they dodge the issue?

I don't think for long. If I were a betting man, I'd say it is a good bet that SCOTUS will take up the same-sex marriage issue next term and will have a decision by June 2015.

I suppose that religious groups could argue that, similar to the Hobby Lobby case, forcing them to provide the service of marriage to same-sex couples is a violation of their First Amendment right to the free exercise of their faith

Now, that's an issue they are certain to avoid ... because none of the cases in the pipeline raise that issue.

Going back to the Hobby Lobby decision, I just noticed
this ruling in California. Is that going to stir things up again? Do insurance companies have First Amendment rights?


Stir things up more than they already are? I'll try to think how that happens. The thing to remember is that the insurance companies want to provide coverage for contraception and abortions! Those procedures are far less expensive than unplanned and unwanted pregnancies. If they had their druthers, every woman in America would have the right and ability to say NO to pregnancy.
 
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