marriage equality

  • May 8, 2015
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Follow him on Twitter @jpscasteras.

    It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry.  And they fell back upon the claim that the definition of marriage is a longstanding tradition.

    No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation.  Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

    The resemblance should come as no surprise.  Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage.  Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues.  Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

    Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly.  Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.”  The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”

  • May 4, 2015

    by Caroline Cox

    At The New York Times, Jesse Wegman considers the lethal injection case before the Supreme Court and how “both the logic and the practice of the death penalty begin to collapse inward on themselves.”

    Nina Totenberg of NPR discusses the ruling in Williams-Yulee v. Florida Bar and its implications.

    David Savage reports in the Los Angeles Times on the oral arguments in the same-sex marriage cases and how opponents of marriage equality are arguing that marriage is not centrally about love or fedelity.

    At Hamilton and Griffin on Rights, Marci A. Hamilton reviews the history of the marriage equality movement and the religious freedom questions it raises.

    At Salon, Joanna Rothkopf profiles Marilyn Mosby, the Baltimore City state’s attorney that recently deemed Freddie Gray’s death a homicide.

  • April 29, 2015
    Guest Post

    by Sherrilyn A. Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund. Follow her on Twitter @Sifill_LDF.

    Yesterday, as the U.S. Supreme Court heard oral arguments about whether states can exclude gays and lesbians from the benefits of marriage, the crisis in Baltimore flooded the airwaves and brought renewed attention to long-simmering issues of racial justice. While the two issues might seem worlds apart, the often-overlooked truth is that both come down to the fundamental question of whether we as a nation take seriously the responsibility to confer equal dignity upon every citizen.

    It is Justice Anthony Kennedy who has elevated the principle of human dignity in a series of rulings. In a 2003 decision that decriminalized “homosexual conduct,” Justice Kennedy stressed that adults must “retain their dignity as free persons.” When the Court eliminated the death penalty for children, a majority led by Kennedy explained that the U.S. Constitution “reaffirms the duty of the government to respect the dignity of all persons.”  In a 2013 decision striking down the so-called Defense of Marriage Act, Kennedy’s opinion emphasized the principle that gays and lesbians “occupy the same status and dignity” as heterosexuals.  Yesterday, at oral argument, Kennedy again raised this concern, stressing that the whole purpose of marriage is “enhancing the dignity of both the parties.”

    Yet it is not only Justice Kennedy.  In 1954, the Court in Brown v. Board unanimously struck down segregation in schools, precisely because it engendered a “feeling of inferiority as to [students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”  In upholding the Civil Rights Act of 1964, the Court stressed “the personal dignity” of individuals who seek to access public accommodations on an equal basis.

    Most relevant to marriage equality, dignity has animated the NAACP Legal Defense Fund and its litigation dating back to the 1960s case of Loving v. Virginia.  Loving involved a married, interracial couple who were dragged out of bed by police in the middle of the night, hauled to jail, and eventually exiled from the state for 25 years in return for a suspended one-year jail term.  Not coincidentally, Virginia charged the Lovings with violating “dignity of the Commonwealth.”  LDF argued that this was unconstitutional and violated the fundamental right to marry and the justices unanimously agreed.  Building upon Loving, LDF filed a brief last month in the Supreme Court underscoring that “all persons yearn and deserve to be treated with equal dignity and respect, both individually and as married couples.”

  • April 29, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Nothing in the almost two and a half hours of oral arguments altered my prediction that at the end of June 2015 the Supreme Court will hold that state laws prohibiting same-sex marriage deny equal protection to gays and lesbians. The only question is whether it will be 5-4 or 6-3 to declare unconstitutional laws prohibiting marriage equality and whether the opinion will be written by Chief Justice John Roberts or Justice Anthony Kennedy.

    Why the certainty of this prediction? To begin with, the states that are defending their bans on same-sex marriage – Kentucky, Michigan, Ohio, and Tennessee –failed to articulate any legitimate justification for their laws. In reality, the laws prohibiting same-sex marriage stem from a moral condemnation of homosexuality, but the Supreme Court has been explicit that it will not accept such a justification for laws discriminating against gays and lesbians.

    So the states are trying to defend their laws by stressing tradition and the historic definition of marriage as being between a man and a woman. But a tradition of discrimination is not an acceptable reason in the courts for continuing to discriminate. In 1967, in Loving v. Virginia, the Supreme Court declared unconstitutional a state law that prohibited interracial marriage. Such laws had existed throughout American history, even in California until the 1940s. But the Court rightly gave no deference to this tradition and rejected the argument that the definition of marriage should be left to the political process.

    The primary argument made by the states is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, declares in its brief:   “Separating marriage from procreation dramatically changes the state’s interest in the institution. . . .  It is the state’s interest to encourage opposite-sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”

  • April 28, 2015

    by Caroline Cox

    Today, the Supreme Court hears oral arguments in the same-sex marriage cases. In The New York Times, Joseph Landau explains why Chief Justice John Roberts may support same-sex marriage and argues that it “would actually be the more prudent and moderate path.”

    David G. Savage discusses in the Los Angeles Times how Justice Anthony Kennedy is “poised to be the crucial vote in deciding whether gay marriage will be a constitutional right nationwide.”

    At Bloomberg View, Noah Feldman argues that while Justice Kennedy may not clearly show his hand today, the Supreme Court will rule in favor of same-sex marriage.

    Richard Wolf of USA Today profiles Mary Bonauto, a key player in the legal fight for marriage equality and the lawyer who will argue for same-sex marriage before the Supreme Court.

    David A. Gans writes at the Constitutional Accountability Center’s Text & History Blog that a new bill in Congress seeks to strip federal courts of the ability to hear any cases pertaining to marriage, which would challenge “key aspects of our constitutional structure.”