Gay Marriage Case

June 28, 2015 Update: In a 5 to 4 ruling (Kennedy the swing vote), the US Supreme Court ruled to give gays the right to marry, citing the Fourteenth Amendment and other things.

I haven't read the opinion which is 103 pages, but only a couple of articles. One said: But Kennedy was swayed by the fact that hundreds of thousands of married same-sex couples already exist and that they – and their children – are being treated differently by the law when they move to a state that doesn’t recognize their union.

If the Court ruled the other way where each state could define marriage the way they wanted, some states would recognize a gay couple’s marriage and others not. Then what about all the gays already married if the Court reversed those? It was going to be messy. It looks like Kennedy made a practical decision rather than a legal one, and that is why the four justices in the dissent have been so hard on him. He played practical legislator rather than judge. I was afraid of that could happen. Listen to the Bob McClain call below.

The dissenting opinion mirrored the reasoning I wrote a couple of weeks ago below. The decision to define marriage is arbitrary and hence should be left up to the states, democratic process and the people, not the court system. Roberts wrote in dissent: This court is not a legislature… Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be…. The fundamental right to marry does not include a right to make a State change its definition of marriage… Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

This is going to get interesting now. What is the Court going to do when a man and two women want to be married? Clearly, they now have the same right under the Fourteenth Amendment. Where does the rights in the Fourteenth Amendment just stop? It doesn’t. Either the right is there or it is not. It doesn’t turn on and off. The Court is going to have to twist its logic into a pretzel to plug all the holes in the marriage definition dam this decision has created.

This is why Presidential elections matter. Presidents appoint Supreme Court Justices. And why Presidents need to carefully screen appointees. President Reagan appointed Anthony Kennedy to the US Supreme Court. This case was lost then, in 1988.

I thought this was a 10th amendment issue. States issue marriage licenses, so they can define what marriage is. I misjudged it. The bottom line is I still see the 10th amendment in the Constitution. Most courts just ignore it. The federalization of the country marches on, by taking away local decision making authority inch by inch, often with the help of the courts. It is harmful in the long run.

I’ve been saying we are in a long-term slide for about 7 years now. It’s along four main routes, economically, morally, socially and spiritually. Even though I feel I saw the slide coming (wrote about it a 100 times), to actually see some of these things ratchet down in one week right in front of me is still a bit surreal.

The decision reminds me of the no-fault divorce craze of the 1970’s, when in 1970 California adopted it, and by 1985 all states had it. We didn’t see the social harm to children until 20 and 30 years later. I could be wrong, but I’m thinking we are headed for more of the same there too, and it will take a while to see it.

As you might have read there is a gay marriage case before the US Supreme Court. The case is Obergefell v. Hodges. This case is a rollup of various cases in Ohio and then the Federal Sixth Circuit Court of Appeals.

It started as Obergefell v. Kasich (Ohio governor) was in Ohio. Henry v. Wymyslo (Ohio health director) was another case in Ohio. Similar cases were going through the federal district courts in Tennessee (Tanco v. Haslam), in Michigan (DeBoer v. Snyder) and Kentucky (Bourke v. Beshear). The district courts all ruled the state bans on gay marriage violated the US Constitution and all four states appealed their cases to the Sixth Circuit Court.

The Sixth Circuit rolled up those cases into Obergefell v. Himes (Ohio’s Interim Health Director). The Sixth Circuit reversed the district courts’ rulings and stated Ohio's ban on same-sex marriage did not violate the U.S. Constitution. The Sixth Circuit said it was bound by the U.S. Supreme Court's 1972 action in a similar case, Baker v. Nelson, which dismissed a same-sex couple's marriage claim "for want of a substantial federal question". More on that later.

If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson (1972), is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority [of judges in the Sixth Circuit] posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.”… Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.

The Obergefell (same-sex couples) appealed to the US Supreme Court, and the case is now known as Obergefell v. Rodgers (Ohio’s new Health Director). The Fourth, Seventh and Tenth Circuits all struck down one man and one woman marriage laws in those areas of the county, so the sister circuits were in conflict. (The Sixth v. the Fourth, Seventh and Tenth Circuits.) The US Supreme Court took the Obergefell case and it was argued to the Court in late-April.

The plaintiffs were represented by civil rights lawyer Mary Bonauto, attorney Douglas Hallward-Driemeier, and U.S. Solicitor General Don Verrilli. The Obama Justice Department is helping to argue the case for striking down the one man one woman definition of marraige.

The Ohio, Michigan, Tennessee, and Kentucky are represented by former Michigan Solicitor General John Bursch and Joseph Whalen, an associate solicitor general from Tennessee.

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?

Edith Windsor and Thea Spyer were married in Canada. The state of New York recognized the marriage the next year. Spyer then died, leaving her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, so she would not have to pay estate taxes on the inheritance. She was barred from doing so by the DOMA or Federal Defense of Marriage Act (section 3), that defined a spouse as those in marriages between a man and woman. Looking at that law, the IRS ruled the exemption did not apply, denied Windsor's claim, and required her to pay more than $300,000 in estate taxes.

Windsor filed a lawsuit against the federal government because DOMA singled out legally married same-sex couples for "differential treatment compared to other similarly situated couples without justification."

Obama’s Justice Department refused to defend the constitutionality of DOMA (U.S. Attorney General Eric Holder) and Paul Clement, representing the Bipartisan Legal Advisory Group jumped in to defend the federal law.

The federal district court ruled DOMA was unconstitutional under the due process guarantees of the Fifth Amendment. The U.S. Second Circuit Court affirmed the district court ruling.

The Bipartisan Legal Advisory Group petitioned the U.S. Supreme Court to review the Second Circuit decision. On mid-2013, the U.S. Supreme Court ruled 5 to 4 declaring Section 3 of DOMA to be unconstitutional "as a deprivation of the liberty of the person protected by the Fifth Amendment."

In Windsor, the Court held that federal government could not treat state-sanctioned heterosexual marriages differently from state-sanctioned same-sex marriages. That is things the states defines as the same, have to be treated the same by the federal government.

From the majority opinion: DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal… And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities… The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.

For Gay Marriage: The argument for gay marriage is based on the 14th amendment or equal protections clause. That is, all adults should have the right to marry whom they want and have it recognized by the state they live in. Also, if a same-sex couple is recognized as married in one state, other states should recognize the marriage under the equal protections clause.

For One Man One Woman: This argument isn’t about how to define marriage, because that is an arbitrary definition. But who gets to decide is the question? The people in the individuals states acting through the democrat process, and not the federal courts is the argument there.

After reading about the case and listening to the oral arguments, this is going to be a 5 to 4 decision, no doubt. You can hear in their statements and questions the liberal justices see this as a constitutional rights issue and will vote to strike down the state bans on same-sex marriage. The conservative justices see defining marriage as a decision for each state and each state is free to recognize or not recognize a marriage from another state. That is well within the rights of a state. Kennedy will be the swing vote.

I wouldn’t bet a lot on this, but I think Kennedy will vote there is no Fourteenth Amendment violations here, and the states have the right to define what a marriage is and what it isn’t. States do not have to recognize the marriages of others states if their definition of marriage is different.

I think the Court’s reasoning will follow along the lines of the Sixth Circuit opinion that pointed to the Supreme Court’s order in Baker v. Nelson’s of October 10, 1972, "The appeal is dismissed for want [lack] of a substantial federal question."

Baker v. Nelson was a case in Minnesota where a two men sued the state because they were denied a marriage license, arguing their Fourteenth Amendment rights/ equal protections were violated. From that one line order, the Court at the time felt it wasn’t a federal constitutional or Fourteenth Amendment issue.

Times have changed, but the law really shouldn’t have and I think a majority of justices will recognize this. Although there was a lot of discussion about Windsor, it is irrelevant to this case I believe as the Sixth Circuit explained in its opinion.

Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a state to define marriage as they see it. To respect one decision does not slight the other. Nor does Windsor’s reasoning clash with Baker. Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic relations.

Windsor supports my point the states are supreme and get to make the decision of who is married and who is not married in their state. In this sense it is a simple states rights issue, as protected by the Tenth Amendment and the notion that states are sovereign when it comes to authority over domestic relations in THEIR state.

Windsor ruled if the state ABC recognizes Bill Smith and Tom Jones and issues them a marriage license as husband and husband, the federal government must recognize it. On the other side of that Windsor coin, that case also says an individual state has the supreme authority to set its own definition of marriage, unmitigated by the Federal government and even the Federal judiciary.

As to question 2, again an individual state’s definition is supreme in its state. State ABC would not have to recognize the marriages of others states if ABC’s definition of marriage is different.

Let’s say the Court rules same-sex couples have the right to marry in all states because they have a Fourteenth Amendment right to be married. What legal principle in the Fourteenth Amendment would suddenly shut off and prohibit three women marrying or a man and two woman marrying? None. The three would-be spouses could argue the Fourteenth Amendment grants them the same rights and the Court would be hard pressed to find the place this right arbitrarily just shuts off.

The fact that the Court would then be in the game of picking the place to turn off that Fourteenth Amendment right, indicates it is not a rights issue -- rights are either there or not. But rather defining what a marriage is and is not, is an arbitrary decision. Marriage can be defined as this, this or that. Such arbitrary decisions are reserved for the states, the legislative or democratic process, and the people. It would be like arguing to the US Supreme Court your right is being violated because the speed limit in one state is 55, but 65 in another state and only 45 in yet another state.

I think the Court knew this in 1972 in Baker v. Nelson. "The appeal is dismissed for want [lack] of a substantial federal question." Translation, as long as the state’s arbitrary definition of marriage is applied universally, no one’s rights are being violated and the Court doesn’t have a role here. It is up to the states to define what a marriage is and isn’t in their state.

Justice Alito was keenly on to this. In oral arguments he said, “Suppose we rule in your favor [for the gay couple] in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?”

The civil rights attorney then responded in what proved to be a circular argument, that decision would be left to the states. It was like she was saying to the Court, you have the right to step over the states when it comes to OKing same-sex marriages of two people, but the expansion of the decision beyond that, isn’t up to the Court. The truth of the matter is, none of it is up to the Court to decide. It’s not a Fourteenth Amendment issue.

Marriage is arbitrarily defined by society via laws in the state legislatures. Think about it, a state could have just as easily defined marriage as only man and man or woman and woman, but tradition dictated a man and a woman. To go from it is an arbitrary decision left to the people and the legislatures, to it’s an individual rights issues decided by the Fourteenth Amendment, is quite a leap that has many pitfalls as I laid out above. The Court will be very careful in making such a leap in my opinion.

How does the Fourteenth Amendment apply? Within a state’s definition of marriage, whatever it may be, everyone must be treated equally. In South Carolina, for example, one man and one woman is the definition, so man and woman couples must be treated equally by the state. For example, allowing a white man and white woman to marry but not a black man and white woman would violate the equal protections clause of the Fourteenth Amendment.

This is related to the second reason, but it is a bit different. The US Supreme Court doesn’t see it as their decision to change the definition of marriage in the face of all this history of one man and one woman.

Justice Kennedy: One of the problems is when you think about these cases, the word that keeps coming back to me is millennia, plus time. First of all, there has not been really time, for the Federal system to engage in this debate, the separate States.

Justice Kennedy: And so there's [been enough] time for the scholars and the commentators and the bar and the public to engage in it. But still, 10 years, I don't even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it it's very difficult for the Court to say, oh, well, we know better.