The Supreme Court on Tuesday will hear arguments in what could be the consolidated cases that lead to the recognition of a right to same-sex marriage under the Fourteenth Amendment to the United States Constitution. I will be interviewed on the case on CNN around 9 am on Tuesday morning.
It was only two years ago that the Supreme Court struck down the denial of federal benefits to same-sex couples in United States v. Windsor. However, as in past cases, the Court struggled mightily to avoid recognizing a constitutional right to same-sex marriage.
It was only in 1986 in Bowers v Hardwick that Justice Lewis Powell told his clerk “I don’t believe I ever met a homosexual.” The clerk was Carter Cabell Chinnis, Jr., who was gay but Powell did not know it. In that disgraceful decision (which Powell added his vote as the fifth vote for the majority in upholding laws criminalizing homosexual relations), Chief Justice Warren Burger wrote “Condemnation of [homosexual] practices is firmly rooted in Judeao-Christian moral and ethical standards.”
Justice Anthony Kennedy may now be ready to cast the fifth vote to finally establish a constitutional right for same-sex marriage. The Court will hear two questions in Obergefell vs. Hodges (as well as three related cases from Kentucky, Michigan and Tennessee): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and 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?
Oral argument will last 90 minutes on the first question and 60 minutes on the second question.
A decision is expected in June.
“HOO did not decline to print the t-shirts in question or work with GLSO representatives because of the sexual orientation of the representatives that communicated with HOO. It is undisputed that neither [of the] HOO representatives … knew or inquired about the sexual orientation of either GLSO representatives …. Rather, … the conversation between GLSO representative … and HOO [co-]owner [Blaine] Adamson was about GLSO’s mission and what the organization generally promoted…. HOO’s declination to print the shirts was based upon the message of GLSO and the Pride Festival and not on the sexual orientation of its representatives or members….”
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From the Wapo article DBQ posted.
In a somewhat relevant case……A Kentucky Court has found that a printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts .
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/27/printing-business-has-first-amendment-and-rfra-right-to-refuse-to-print-gay-pride-festival-t-shirts/
Soon they will find that the bakers and florists also have that same right.
Interesting.
@NickS
Finally, my durn internet is back up. I am switching from Comcast this week. I think their routers don’t work well with Windows7 or something. My kindles connect sometimes, while my laptop doesn’t. But it is hard to type on Kindle. Then, Comcast drops the signal and nothing works.
Anyway, I think Randyjet is making some great arguments here. Most people just presume that gay marriage is some sort of civil right, and probably SCOTUS will go that way, also. But, FWIW just 3 years ago, the Europeans held differently. I am not sure if this has changed in the last 3 years, but:
http://www.breitbart.com/london/2014/07/25/european-human-rights-court-says-no-right-to-same-sex-marriage/
There goes the internet again, sooo I will post this when it comes back up, if ever.
Squeeky Fromm
Girl Reporter
And the Founders resolved an entire nation in 1789. Was there homosexual “marriage” (a literally impossible, absurd oxymoronic contradiction in terms) in 1789? If the Founders knew, scientifically, of homosexuality, why did they deliberately omit homosexual marriage? Homosexual marriage could have been codified by those enormous intellects. Alas, it wasn’t. Why?
Your egoistic presumption to superior cogitation and morality is in diametric opposition to the brilliant minds that wrote the founding documents (if you incorporated the rule of the “fog factor,” your obfuscatory convolutions might be decipherable even to the common, everyday, garden variety homosexual).
Wow! Is that even possible?
After complete rejection of the primary founding document, the Preamble, some appear to believe that the founding documents restricted nothing and placed no limits on anything as if the Founders implemented only one rule: Do anything you want.
The Founders had a firm grip on reality and summarily rejected any notion of unnatural deviance and perversion enjoying irrational ascendance. Absolutely preposterous. This is distinctly not good law. There is no need, other than pure indulgence for the sake of indulgence.
The Emperor has no clothes.
randyjet:
I do not believe that cases should be read in isolation. Jurisprudence is a dynamic process. The case now before the Court will not be determined on the basis of either Lawrence or Loving standing alone.
In the interests of saving a lot of unnecessary argument, I resolved this issue three years ago here. http://jonathanturley.org/2012/05/27/marital-dischord/
You’re welcome.
Mike, Thank you for correcting rafflaw with me on this since you cite Loving primarily. Then you make an unwarranted jump of faith to gay marriage from Lawrence v Texas. It is a FAR cry from decriminalizing homosexual acts to the granting state sanctioned legal contracts of marriage. How you can make that jump requires nothing but faith, not reason or legal reasoning. So I think we all can agree that the state has no right to throw people in prison for who they make love with. That is a far cry from granting them marriage rights as well. We don’t throw people in prison now for living with whoever they wish to live with. They may well have sex and be polygamous in private, but it does NOT mean that polygamy should be part of our legal canon.
randy,
I am not suggesting that Loving authorized gay marriages. Please show me where I said that? I am only stating that the very same arguments against gay marriage were used in Lovings day and prior.
I don’t have a problem with polygamy if the parties are all of age and proper laws are prepared to deal with multiple spouses in Probate and intestacy matters and other beneficiary matters.
We have already had the “revolution” when it comes to gay marriages. The courts aren’t making the change, they are only stating what they believe the law says and if it is constitutional for some states to not honor other states laws allowing gay marriage and if it is unconstitutional for states to deny people the choice who they want to marry.
raff, I read the court decisions, and they ALL use Loving as the basis for their decision. The ruling by the MA SC even ORDERED the legislature to pass a gay marriage law. So to say that the courts have used existing law apart from Loving is delusional. The rulings also accept the idea that gay marriage is a right at the very outset, and then ask if there is a compelling state interest in not granting it. That is a circular argument in which one assumes the validity of gay marriage and then asks why it should not be granted.
As for polygamy, the question has to be, does the state get any benefit out of such an arrangement? Does it help or hurt society? The idea that the state has to grant anything somebody wants when they want it is absurd. The state, which is WE the people, should get some benefit out of our laws. How about divorce matters in polygamy and child custody? Is there such an overwhelming benefit to polygamy that the legislature should devote time, money, and effort to resolve all of this, and then setup more family courts to handle the new cases?
Suppose it’s true that legalizing gay marriage paves the way to legalize polygamous marriages. Why should I care?
The only reasons I can think of to care are the following:
(1) In some polygamous communities, women and underaged girls are being forced into marriages against their wills. I oppose this for what I think are obvious reasons — reasons that have nothing to do with the polygamy, itself.
(2) It is unfair if people in polygamous marriages enjoy legal advantages (especially in respect of taxes) over people not in such relationships. But I’m honestly not convinced that tying any such advantages to marriage is the right way to go in any case. This is especially true for any laws that are justified on the grounds that they “protect children”, since the condition of children will be the same in living situations that are not legally sanctioned. If you are going to protect children, protect them directly — not through clunky marriage laws.
What am I leaving out?
nin How will you deny the tax advantages and welfare benefits for polygamous couples? Then there is the question of divorce and how one divides the marital assets, children, etc.. It will give advantage to wealthy men who can afford to accumulate a harem and deny mates to other men. Will that benefit society? In short, one has to look at the reasons for marriage and the state sanctioning it.
I’m sure gay/plural marriage will be similarly ‘settled,’ and there’ll be no further argument about it, right?
‘Law of the land’ and all, just like abortion.
Easy peasey.
If it’s ‘settled’, why are we still fighting over it?
DBQ, I am well aware that the SC doesn’t make laws. The Supreme Court decides the Constitutionality of laws. Justice Roberts said “Roe v. Wade is the settled law of the land.” Figure it out.
Roe v. Wade is a settled law of the land.
The SC defined abortion as a Constitutional Right. It did not make a law regarding abortion. The SC made it so that abortion would be legal, however EACH State can make a separate law regarding how it will treat abortion and what restrictions it will place on it.
There is NO Federal Law regarding abortion. And with this case before the SC if they find a Constitutional right for homosexual marriage, it will still leave each State to make differing laws that can put restrictions on marriage that will vary from State to State. Just like Roe v Wade.
The SC doesn’t MAKE law. It decides the Constitutionality of laws and defines Constitutional rights.
Roe v. Wade is a settled law of the land. This case on same sex marriage will also be considered law of the land if five of the Justices rule in favor of it.
“The phrase law of the land is a legal term, equivalent to the Latin lex terrae (or legem terrae in the accusative case). According to Blacks Dictionary of Law (5th ed.), lex terrae is “The law of the land. The common law, or the due course of the common law; the general law of the land. Equivalent to “due process of law. In the strictest sense, trial by oath; the privilege of making oath.”
Wiki
Prego, rafflaw, prego.
Until the Congress makes a Federal Law there is not a federal law. There is no Federal Law regarding abortion either. This is why there is such chaos about abortion law from State to State.
If the SC decides there is a Constitutional right to SSM…..that still doesn’t make it a Federal Law.
Moot.
The Supreme Court upholds Constitutional rights. The Constitution is the Supreme Law of the land. Same sex marriage will most likely be legal on a federal level in June.
“The Supremacy Clause is the provision in Article Six, Clause 2 of the United States Constitution that establishes the United States Constitution, federal statutes, and treaties as “the supreme law of the land.” It provides that these are the highest form of law in the United States legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either a state constitution or state law of any state.”
Wiki
The Supreme Court will be ruling that it is a Constitutional Right,
That still doesn’t make it a Federal Law. The Supreme Court does not make and pass laws.
Moot.
http://www.csg.org/pubs/capitolideas/2013_may_june/federalism.aspx
“In recent years, states with some frequency have disagreed with and objected to a variety of federal laws. Sometimes the objectionable federal law has been in the form of federal statute. Sometimes the federal law is constitutional law, in the form of U.S. Supreme Court decisions interpreting the scope of the federal government’s power and federal constitutional rights.”
The Supreme Court will be ruling that it is a Constitutional Right, just as they ruled in Roe v. Wade, which is the law of the land, as will be federal same sex marriage rights.
DBQ, this will happen in June. Duh. So your states rights argument is moot.