Thoughts in a Haystack

Sorry for the long hiatus. I had a terrible December ... a bout of the flu, a car accident (no injuries but a lot of paperwork with insurance and getting a new car), another couple of days in the hospital with my still mysterious gastrointestinal ailment and then trying to catch up at work for all the time lost.

On to some more hopeful news.

The issue of marriage equality will be definitively decided, it is now all but certain, by the end of June. On Friday, January 16, 2015, the Supreme Court granted certiorari in the four cases, from Kentucky, Michigan, Ohio, and Tennessee, in which the Sixth Circuit court of Appeal upheld the state bans on same-sex marriage and/or on recognition of out-of-state same-sex marriages validly entered into in other states:

BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1.

A total of one hour is allotted for oral argument on Question 2.

The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

While the decision did not set the date for oral arguments, it is believed that they will be heard during its final session of oral arguments from April 20 through 29. If all goes as expected, that means the Court should issue a decision by the end of this term in late June. It would not be surprising if it was the last decision it issues.

The Justice Department has announced that it will file an amicus curiae brief in favor of marriage equality.

SCOTUSblog, which is an excellent source of news and commentary on the Supreme Court, its workings, and its decisions has been busy over the last day.

David B. Cruz, Professor of Law at the University of Southern California Gould School of Law, lays out the reasons why it is not overly optimistic to believe that the Court will strike down the Sixth Circuit's decision and find a constitutional right to same-sex marriage:

And, while predictions are always risky, the couples appear likely to prevail on those claims. As mentioned above, the Supreme Court let stand earlier marriage equality decisions from the Fourth, Seventh, Ninth, and Tenth Circuits and denied stay requests from Florida, for example. If there had been a solid five votes on the Court to reject the constitutional arguments for marriage equality, such five Justices likely would have granted a stay of those rulings to preserve states' prerogatives regarding marriage. This suggests that Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito – all of whom voted to uphold the discriminatory Defense of Marriage Act in United States v. Windsor – did not think they could count on Justice Anthony Kennedy (or any of the four more "liberal" Justices) to vote against marriage equality. Since the Court let untold numbers of same-sex couples marry in states across the country by rejecting many states' cert. petitions and has now taken up four cases presenting the same issues, it would seem difficult from a fairness issue to let residents of Ohio, Tennessee, Michigan, and Kentucky enjoy less constitutional protection than residents of many other states. It is unthinkable to me that the Court would now turn around and tell the people who married only after it cleared the way for them to do so that the Court was wrong to do that and their marriages were void.

On the whistling past the graveyard side is Austin Nimocks, Senior Counsel at Alliance Defending Freedom, who seems to think that the Supreme Court was just waiting for a decision to allow "the people's freedom to debate this issue of marriage as a community." He actually titles his article "Cert. grant signals promising vehicle to affirm marriage" (which in fundie-speak means "limit marriage to people I like"). I agree to the extent that it is just like the Supreme Court was waiting to affirm the people's right to debate "separate but equal" as a community. And he seems to think that the fact that, at the time of Loving v. Virginia "only" sixteen states still had anti-miscegenation laws somehow matters. Apparently, there is a "magic" number of states where constitutional rights are denied where the Court can step in and say the people's freedom to debate is over. Bottom line: "Yeah, we lost this fight ... but keep those donations coming!"

A somewhat more rational response comes from Andrew Brasher, the Solicitor General of Alabama, who is concerned that the Supreme Court might find "that man-woman marriage laws serve no legitimate state interest and fail even the lowest form of constitutional scrutiny – the rational basis test." I have speculated that Chief Justice Roberts might assign himself the majority decision to rule exactly that way, as a way to make it easier to discriminate against LGBT people (and other disfavored minorities). For example, is there a "rational basis" to pass laws to keep transgender people out of bathrooms and locker rooms assigned to people of different "biological" genders? That might be a closer question.

It is one thing for a court to find that a state law affects a suspect class or fundamental right, impose a high level of scrutiny, and hold the state to its burden to justify the law. It is another thing entirely for a court to hold that a state policy is so wrongheaded as to be beyond reason, even though it infringes no fundamental right and affects no suspect class. The former kind of ruling justifies itself by reference to constitutional principles that are, by definition, more important than whatever good-faith reason the state had for its countervailing policy choice; the latter kind of ruling indicts the state's decision-making process itself as dysfunctional at best and, perhaps, malicious.

... [T]he Court should at least reject the argument that these laws serve no legitimate state interest. The rational basis test is easy to meet. It is thus no coincidence that the Sixth Circuit is the first appellate court since Windsor to apply the rational basis test to state marriage laws and, also, the first appellate court since Windsor to uphold them as constitutional. Even the U.S. Department of Justice, which argued that DOMA was unconstitutional under strict scrutiny, defended DOMA as rational. ...

... [S]tates are in the marriage business "not to regulate love," but because of "the intended and unintended effects of male-female intercourse." Accordingly, it is not unreasonable that many states' marriage laws reflect an "awareness of the biological reality that couples of the same sex do not have children the same way as couples of opposite sexes." The Sixth Circuit also acknowledged the state's legitimate interest in adopting a wait-and-see approach "before changing a norm that our society (like all others) has accepted for centuries." Are these compelling state interests narrowly served by traditional marriage laws? Debatable. Are they legitimate interests that are rationally related to traditional marriage laws? Of course they are.

While there is something to be said for this argument, it ultimately fails on his admission that it is "debatable" that "compelling state interests [are] narrowly served by traditional marriage laws." In case after case that examined such claims, it was found, as a factual matter, that the arguments that were advanced for such a state interest had no relationship, whatsoever, to denying same-sex marriage.

Lastly, Steve Sanders, who teaches constitutional law at the Maurer School of Law, Indiana University Bloomington, has a nice discussion of why the thirty-one state constitutional bans against same-sex marriage enacted between 1998 and 2012 were, in fact, the products of constitutionally repugnant "animus" – that is, a desire to disparage or injure gays out of fear, misunderstanding, or dislike.

An inquiry about animus does not require that we "indict" citizens who voted for a law, or that we probe their psyches or individual motives. It simply takes seriously the principle that every law is proposed and approved for some purpose (sometimes more than one), and it is a judicial task to identify and assess the purpose(s). When evidence of gratuitous or irrational intent to harm a group outweighs a law's purported legitimate justifications, the law betrays an improper purpose and violates equal protection. As the late Chief Justice William Rehnquist observed in Hunter v. Underwood, the same law can be valid or not under the Equal Protection Clause depending on whether it was "motivated by a desire to discriminate."

Well, the storm looms on the horizon. If the Supreme Court does as it has been signaling it will do for the last two years, the Religious Right will lose whatever collective minds it still has. There will be attempts by state legislatures to somehow hold back the rising tide and King Canute will stalk the land. There will be hysteria (which will generate much amusement) but, it is devoutly to be wished, LGBT people will, at last, have a chance to settle down, raise families in peace and enjoy all the rights of other people.